Applicant v Intervener

Supreme Court of Victoria|2009-09-07|Before: WARREN CJ

HUMAN RIGHTS - Right not to be compelled to testify against oneself or to confess guilt - Right to a fair hearing - Privilege against self-incrimination - Use of evidence derived from compelled testimony - Derivative use immunity - Whether derivative use immunity part of right against self-incrimination - Whether derivative use immunity part of right not to be compelled to testify against oneself or to confess guilt and right to a fair hearing.

STATUTORY INTERPRETATION - Major Crime (Investigative Powers) Act 2004 , (1) - , (1), (2)(k), - Principles of statutory construction - Whether limitation on right demonstrably justified in a free and democratic society - Whether right can be interpreted consistently with the purpose of the .

Mr S Ward, Acting Solicitor for Public Prosecutions

1 This is an application under s 10(1)(b) of the Major Crime (Investigative Powers Act) 2004 ('the Act') to vary a coercive powers order made by a judge of the Trial Division on 20 October 2008 pursuant to s 5(1) of the Act. His Honour made the coercive powers order subject to the following condition: that any person who has been charged with any offence linked to the organised crime offence the subject of the coercive powers order will not be summonsed to give evidence at an examination until resolution of the issue with respect to s 25(2)(k) of the Charter of Human Rights and Responsibilities Act 2006 ('the Charter'). The applicant seeks to vary the coercive powers order so as to remove that condition.

2 It is unnecessary to refer to the specific details of the organised crime offence the subject of the coercive powers order, or to the persons affected by it. Indeed, in imposing the condition, the judge indicated that it would be preferable for the issue to be resolved as a matter of general principle rather than by reference to the specific crime the subject of the order. Whilst the applicant filed affidavit materials in support, including some reference to an individual case, it should be noted that much of the following analysis and discussion is in the abstract. The hearing before me proceeded in camera because of concerns as to the sensitivity of any evidence and facts. That said, the condition imposed by the judge limits the issue for determination to persons who have been charged with an offence. Thus, the matter to be clarified and determined is the nature of the relationship between the powers of investigation of organised crime offences in the Act, and the human rights guaranteed by ss 24(1) and 25(2)(k) of the Charter, namely, a person's right to a fair hearing and right not to be compelled to testify against him or herself or to confess guilt.

3 The applicant is a member of the Victoria Police who seeks authorisation from the court to question an individual under the Act. The Victorian Human Rights and Equal Opportunity Commission ('the Commission') intervenes pursuant to s 40 of the Charter which grants standing to the Commission to intervene in legal proceedings in which a question of law related to the application of the Charter arises.

The terms of the Act and of the Charter**[1]**

4 The purpose of the Act is to provide a regime for the authorisation and oversight of the use of coercive powers to investigate organised crime offences.[2] A coercive powers order authorises the use of such powers to investigate an 'organised crime offence' which is defined by the Act to mean:

an indictable offence against the law of Victoria, irrespective of when the offence is suspected to have been committed, that is punishable by level 5 imprisonment (10 years maximum) or more and that -

(a) involves 2 or more offenders; and

(b) involves substantial planning and organisation; and

(c) forms part of systemic and continuing criminal activity; and

(d) has a purpose of obtaining profit, gain, power or influence.[3]

5 Under s 5(1) of the Act, a member of the police may apply to the Supreme Court for a coercive powers order if the member suspects on reasonable grounds that an organised crime offence has been, or is likely to be committed. An application must specify, amongst other things, the name and rank of the applicant and the particulars of the organised crime offence in respect of which the coercive powers order is sought.[4] Under s 5(5) of the Act, the Supreme Court may require the applicant to provide any additional information that the Court requires in relation to the application.

6 Section 21(a) of the Act provides for the appointment of a Chief Examiner by the Governor in Council. Pursuant to s 29 of the Act, the Chief Examiner may conduct an examination of a person in relation to an organised crime offence if, inter alia, the Chief Examiner has received a copy of a coercive powers order made in respect of that offence. Part 5 of the Act contains a detailed set of provisions designed for the oversight of compliance by the Chief Examiner with the Act. That oversight is undertaken by a Special Investigations Monitor appointed under Part 2 of the Major Crime (Special Investigations Monitor) Act 2004.

7 The Supreme Court may make a coercive powers order if satisfied that there are reasonable grounds for the suspicion founding the application and if 'it is in the public interest to make the order having regard to the nature and gravity of the alleged organised crime offence and the impact of the use of the coercive powers on the rights of members of the community'.[5] In addition, the Supreme Court may specify in a coercive powers order any conditions it imposes under the order.[6]

8 Section 10(1) of the Act provides for the variation and extension of coercive powers orders on application by a relevant member of the police force. Under s 14 of the Act, the Supreme Court may issue the following types of witness summons on application by a member of the police:

(a) a summons to attend an examination before the Chief Examiner to give evidence;

(b) a summons to attend at a specified time and place to produce specified documents or other things to the Chief Examiner;

(c) a summons to attend an examination before the Chief Examiner to give evidence and produce specified documents or other things.

9 The application must indicate the evidentiary or intelligence value of the information sought to be obtained from the person to whom the summons is to be directed.[7]

10 Similarly, if a coercive powers order is in force, the Chief Examiner may issue the same witness summons as the Supreme Court on his or her own motion, or on application from a member of the police force.[8] The Chief Examiner may issue a summons if satisfied that it is reasonable to do so after consideration of, inter alia, the evidentiary or intelligence value of the information sought to be obtained from the person. The procedure for the making of an application for the issue of a summons is determined by the Chief Examiner.[9] Witnesses, once summoned, are compelled to attend and give evidence.[10]

11 Section 20(2) of the Act states that the Supreme Court or the Chief Examiner, as the case may be, must give notice[11] to a person to whom a witness summons is issued,

if failure to do so would reasonably be expected to prejudice the safety or reputation of a person, the fair trial of a person who has been or may be charged with an offence, or the effectiveness of an investigation of the organised crime offence in relation to which the summons was issued or the order was made.

12 Both the Supreme Court and the Chief Examiner retain a discretion to issue a notice if satisfied that failure to do so might be prejudicial for these reasons, or might otherwise be contrary to the public interest.

13 Part 4 of the Act sets out dispositions relating to examinations. Once a coercive powers order has been received by the Chief Examiner, he or she may conduct an examination of a person to whom a witness summons has been directed.[12] The examinations are not bound by the rules of evidence.[13] Under s 29(2) of the Act,

[t]he Chief Examiner may commence or continue to conduct an examination of a person despite the fact that any proceedings are on foot, or are instituted, in any court or tribunal that relate to or are otherwise connected with the subject-matter of the examination.

14 If the Chief Examiner becomes aware of such proceedings, he or she must take all reasonable steps to ensure that the conduct of the examination does not prejudice those proceedings.[14]

39 Privilege against self-incrimination abrogated

(1) A person is not excused from answering a question or giving information at an examination, or from producing a document or other thing at an examination or in accordance with a witness summons, on the ground that the answer to the question, the information, or the production of the document or other thing, might tend to incriminate the person or make the person liable to a penalty.

(2) Subsection (3) limits the use that can be made of any answers given at an examination before the Chief Examiner, or documents or other things produced at an examination before the Chief Examiner or in accordance with a witness summons.

(3) The answer, or the document or other 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) proceedings in respect of an offence against this Act; or

(d) proceedings under the Confiscation Act 1997; or

(e) 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.

16 Under s 31(c) of the Act, the Chief Examiner must

inform the witness that the privilege against self-incrimination does not apply but that there are restrictions on the use that can be made of evidence obtained in the course of the examination or from production of documents in accordance with the witness summons and specify those restrictions.

17 Turning then to the Charter.[15] For present purposes, it will be sufficient to highlight the particular provisions of the Charter that relate specifically to the issue at hand.

18 The purpose of the Charter, as described in s 1(2), is to protect and promote human rights by:

(a) setting out the human rights that Parliament specifically seeks to protect and promote; and

(b) ensuring that all statutory provisions, whenever enacted, are interpreted so far as is possible in a way that is compatible with human rights; and

(c) imposing an obligation on all public authorities to act in a way that is compatible with human rights; and

(d) requiring statements of compatibility with human rights to be prepared in respect of all Bills introduced into Parliament and enabling the Scrutiny of Acts and Regulations Committee to report on such compatibility; and

(e) conferring jurisdiction on the Supreme Court to declare that a statutory provision cannot be interpreted consistently with a human right and requiring the relevant Minister to respond to that declaration.

19 The Charter is not intended to be an exhaustive source of human rights. Section 5 directs that

[a] right or freedom not included in this Charter that arises or is recognised under any other law (including international law, the common law, the Constitution of the Commonwealth and a law of the Commonwealth) must not be taken to be abrogated or limited only because the right or freedom is not included in this Charter or is only partly included.

20 The Court's interpretative obligation is set out in s 32:

Interpretation

(1) So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

(2) International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.

21 The Court may only limit the extent of a human right in accordance with s 7 in specified terms:

7 Human rights - what they are and when they may be limited

(1) This Part sets out the human rights that Parliament specifically seeks to protect and promote.

(2) A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including -

(a) the nature of the right; and

(b) the importance of the purpose of the limitation; and

(c) the nature and extent of the limitation; and

(d) the relationship between the limitation and its purpose; and

(e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

(3) Nothing in this Charter gives a person, entity or public authority a right to limit (to a greater extent than is provided for in this Charter) or destroy the human rights of any person.

22 If consistent interpretation under s 32 or reasonable limitation under s 7(2) are not possible, the Court may make a declaration of inconsistent interpretation pursuant to s 36 of the Charter.

23 Section 24(1) of the Charter contains the 'Fair Hearing' right:

A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing

24 Section 25(2)(k) of the Charter provides that a person charged with a criminal offence is entitled without discrimination to a minimum guarantee 'not to be compelled to testify against himself or herself or to confess guilt.'

25 The human rights relevant to the making of a coercive powers order arise in ss 24(1) and 25(2)(k) of the Charter, being the 'fair hearing right' and the 'self-incrimination right' respectively. The self-incrimination right is also commonly referred to as the privilege against self-incrimination ('the privilege').

26 Much of the issue revolves around the use that may be made of evidence that derives from compelled testimony and the extent of the immunity that is required when the privilege is abrogated. Where legislation abrogates the privilege, having the effect that a person will not be entitled to claim the privilege as a reason not to answer questions or provide information even if this tends to prove their own guilt, the legislation may sometimes account for this by restricting the use that may be made of the information by providing an immunity. A 'direct use' immunity serves to protect the individual from having the compelled incriminating testimony used directly against him or her in a subsequent proceeding. A further step or protection is a 'derivative use immunity'. This immunity operates to insulate the individual from having the compelled incriminating testimony used to obtain other evidence against that person.

27 Neither party properly addressed the current Victorian evidence statute, the Evidence Act 1958. The intervener adverted in passing to the Commonwealth Act (presumably in anticipation of the Evidence Act 2008 yet to fully operate in Victoria). The applicant made no submissions in this regard. So far as may be relevant, now or later, I observe that direct use and derivative use immunity arise under s 128A(8) of the Evidence Act 1995 (Cth) which provides:

In any proceeding in an Australian court -

(a) evidence of information disclosed by a relevant person in respect of which a certificate has been given under this section; and

(b) evidence of any information, document or thing obtained as a direct result or indirect consequence of the relevant person having disclosed that information - cannot be used against the person ... However, this does not apply to a criminal proceeding in respect of the falsity of the evidence concerned (emphasis added).

28 The present issue may therefore be posed in the following terms: is it lawful, having regard to the directions of the Charter, for the Chief Examiner when exercising his or her functions under the Act, to compel a person who has been charged with an offence to answer questions relevant to the proof of that offence, or offences linked to that offence, which are not for direct use but can lead to derivative use? If it is not lawful, to what extent can derivative use immunity be interpreted consistently with the purpose of the Act? And, if consistent interpretation is not achievable, should the Court issue a declaration of inconsistent interpretation?

29 The applicant made wide ranging submissions. Deciphering them as fairly as I might, the applicant submitted that the Act does not interfere with ss 24(1) or 25(2)(k) of the Charter because those sections do not include, as a part of the human rights they protect, a derivative use immunity of evidence obtained from compelled testimony. The applicant contended that by virtue of s 39, whereby the Act provides a direct use immunity in response to the abrogation of the privilege, the human rights protected by ss 24(1) and 25(2)(k) of the Charter are complied with to the extent that they are protected by the Charter. In arguing against the requirement for derivative use protection, the applicant seems to assume that derivative use protection is absolute; that is, if the Court is to conclude that derivative use immunity is a right that attaches to ss 24(1) and 25(2)(k) of the Charter, the use of the compelled testimony by the investigating authorities would be disallowed in its entirety.

30 The applicant put forward two contentions as to how the Act should be construed. First, the abrogation contained in s 39 of the Act is an express statutory abrogation of the common law privilege against self-incrimination in terms which are sufficiently clear and manifest for their purpose so as to satisfy the threshold for statutory abrogation as stated by the High Court in Sorby v The Commonwealth[16] and Hamilton v Oades.[17] Secondly, the abrogation allows the unrestricted use of evidence but introduces a prohibition on the direct use of the evidence in s 39(3) of the Act, meeting the requirements laid down by the relevant sections of the Charter. By virtue of there being no prohibition on the derivative use of compelled testimony in the Act, such use is inferentially permitted.

31 To support its contentions, the applicant relied on the decision of the Court of Final Appeal of the Hong Kong Special Administrative Region in HKSAR v Lee Ming Tee and Ronald Tse.[18] In Lee Ming Tee, it was held that

[w]here ... 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 becomes a matter of statutory construction.[19]

32 The applicant argued that this construction of the Act is not inconsistent with the directions of the Charter because comparative jurisprudence from South Africa, Canada, Hong Kong, and the United Kingdom demonstrates that the rights in ss 24(1) and s25(2)(k) of the Charter do not extend to the derivative use of evidence derived from compelled testimony. In reliance on comparative jurisprudence, the applicant contended, more specifically, that the rights in ss 24(1) and 25(2)(k) of the Charter operate to ensure that an individual is protected from the direct use of evidence (the compelled testimony itself) relating to an offence with which he or she is charged, but do not operate to prevent evidence being compulsorily required from that person where the evidence has an existence independent of the testimony of the accused.

33 On the applicant's argument, therefore, a direct use immunity is considered sufficient to uphold the relevant rights. Inconsistency between the Act and the Charter would only occur where the rights included a derivative use immunity which s 39 of the Act failed to provide.

Overview of the intervener's submissions**[20]**

34 The role of the intervener was to assist the court in relation to the operation of the Charter. Counsel for the intervener informed the Court that, despite certain substantive differences between the Commission and the applicant on the fundamental issues at hand, the intervener's role was not to contradict the applicant on all issues. Thus, the submissions were confined. The Court was not assisted by a contradictor in the true sense.

35 The intervener contended that one or both of the rights in ss 24(1) and 25(2)(k) of the Charter include a right not to be required to incriminate oneself such that, where that right is abrogated, the abrogation must be accompanied by both a direct use immunity and a derivative use immunity. To this end, the Act may be reinterpreted pursuant to s 32 of then Charter consistently with its purpose so as to be compatible with the rights in ss 24(1) and 25(2)(k). The intervener proceeded on the basis that if the court was to conclude that derivative use immunity was a right that attaches to ss 24(1) and 25(2)(k) of the Charter, the immunity would protect the individual compelled to give incriminating evidence from the tender of evidence against him or herself that was ascertained or discovered as a result of their incriminating evidence.

36 The intervener submitted that the primary body of principles to which this court should have regard in interpreting the Charter is the common law. At common law, the privilege is recognised as including both direct and derivative use immunity. The intervener is fortified in that proposition by majority decisions of the Supreme Court of Canada.[21]

The fair hearing right and the self-incrimination right under the Charter

37 Before proceeding to the interpretative task required by s 32 of the Charter and to a deeper consideration of the submissions of the applicant and intervener, it will be helpful to make some introductory remarks about the rights the subject of this proceeding.

38 Consistent with the decision of the Victorian Court of Appeal in R v Thomas,[22] the right to a fair hearing in s 24(1) of the Charter reflects a fundamental principle of the common law.[23] In Thomas, the Court held that the established principles of the criminal law are 'principles which themselves embody important notions of individual rights'.[24]

39 It was acknowledged by Bell J in Tomasevic v Travaglini[25] that the right of every person not to receive an unfair trial is deeply ingrained in the rule of law. His Honour cited the comments of Isaacs J in R v McFarlane; ex parte O'Flanagan:

[That] the elementary right of every accused person to a fair and impartial trial ... exists as a personal right seems to me so deeply rooted in our system of law and so elementary as to need no authority to support it. It is a right which inheres in every system of law that makes any pretension to civilisation. It is only a variant of the maxim that every man is entitled to his personal liberty except so far as that is abridged by a due administration of the law. Every conviction set aside, every new criminal trial ordered, are mere exemplifications of this fundamental principle_._[26]

40 The majority of the elements that constitute the fair hearing right are expressly guaranteed in ss 25(1) and (2) of the Charter. In Kracke, [27] Bell J, sitting as President of the Victorian Civil and Administrative Tribunal, observed that the provisions of s 25 of the Charter do not derogate from the rights contained in s 24(1), rather, they determine the elements which may constitute a fair hearing under s 24(1). In my view, it would be unhelpful to proceed on the basis that the fair hearing right and the self-incrimination right are separate and unrelated, or that they necessarily require individual analysis. Whilst there may be differences in the expression of similar rights in other jurisdictions, citizens in Victoria must have the right to a fair hearing pursuant to s 24(1) of the Charter, there being a fundamental component of that right in the form of a guarantee in s 25(2)(k) not to be compelled to testify against oneself or to confess guilt. As explained much earlier in time by Winneke CJ and Smith J,

before any person is convicted, it is imperative, if public confidence in the administration of justice is to be maintained, that the conditions essential to a fair trial according to law be strictly observed, one of which is that he may only be convicted on evidence legally admissible against him. If there be no such evidence, then there has been a failure of one of the conditions essential to fair trial according to law.[28]

41 The self-incrimination right is part of the 'common law of human rights' as explained by Murphy J in Hammond v The Commonwealth of Australia:

The privilege against self-incrimination is part of our legal heritage where it became rooted as a response to the horrors of the Star Chamber (see Quinn v United States [1955] USSC 56; (1955) 349 US 155). In the United States it is entrenched as part of the Federal Bill of Rights. In Australia it is a part of the common law of human rights. The privilege is so pervasive and applicable in so many areas that, like natural justice, it has generally been considered unnecessary to express the privilege in statutes which require persons to answer questions. On the contrary, the privilege is presumed to exist unless it is excluded by express words or necessary implication, that is, by unmistakable language (citations as in original).[29]

42 The privilege, as a deep-seated fundamental common law right, hardly needs emphasising. It defines the relationship between the individual and the state and protects people against aggressive behaviour of those in authority.[30] The fundamental rationale of the privilege is 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. As explained by Mason, Wilson and Dawson JJ in Sorby,[31] the privilege operates by protecting a witness from being compelled to answer questions, or produce documents, or things, if to do so might tend to incriminate that person. Their Honours held that the privilege

protects the witness 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.[32]

43 Despite the importance of the privilege at common law, it can be abrogated by statute and the right is not protected by the Constitution.[33] For the abrogation to have the appropriate effect, it must clearly represent the unmistakeable intention of Parliament, either by express words, or necessary implication.[34] Once the privilege has been abrogated, all immunity is removed.[35] That said, the court should not impute to the legislature an intention to infringe upon a civil right unless the words of the legislature are expressed with irresistible clarity or necessary intendment.[36] As stated by Brennan J in Re Bolton; ex parte Beane,

[m]any of our fundamental freedoms are guaranteed by ancient principles of the common law or by ancient statutes which are so much a part of the accepted constitutional framework that their terms, if not their very existence, may be overlooked until a case arises which evokes their contemporary and undiminished force.[37]

44 The authorities make it plain that the privilege is a free-standing human right existing as part of the common law of human rights that may be abrogated by statute either by express intention or necessary implication. Once the privilege has been abrogated, an individual's right to claim privilege on the grounds of self-incrimination falls away unless immunities are provided by the legislature.

45 The importance that the privilege finds its source in the common law cannot be overstated. The common law provides the content, scope, purpose and structure of the privilege. The legislature may remove any of these elements but legislation is not the source of the privilege. It is therefore relevant to examine the privilege as it is stands at common law, unimpaired by statutory overlay.

46 The High Court made significant observations in Reid v Howard[38] clarifying the importance of the privilege as a substantive right and reinforcing the policy that the law favours an immunity from self-incrimination in all the circumstances. This case is especially significant in the Victorian context and the matter before me as I highlight below. Two fundamental principles may be drawn from that case. First, the common law recognises that the privilege against self-incrimination extends to both direct and derivative use. Deane J held in Reid that

[t]he protection which the privilege against self-incrimination confers extends not only to the risk of incrimination by direct evidence (ie evidence of the fact of disclosure and of the material disclosed) but also to incrimination by indirect or "derivative" evidence (ie "evidence obtained by using" the disclosed material "as a basis of investigation").[39]

47 Deane J cited the comments of Lord Wilberforce in Rank Film Distributors Ltd v Video Information Centre[40] with approval, where his Lordship stated,

whatever direct use may or may not be made of information given, or material disclosed, under the compulsory process of the court, it must not be overlooked that, quite apart from that, its provision or disclosure may set in train a process which may lead to incrimination or may lead to the discovery of real evidence of an incriminating character ... The party from whom disclosure is asked is entitled, on established law, to be protected from these consequences. [41]

48 Deane J also agreed with the similar findings in Sorby[42] referred to earlier, regarding the extension of the privilege to the discovery of real evidence of an incriminating character.[43] His Honour's statements are consistent with the majority judgment of Toohey, Gaudron, McHugh and Gummow JJ in Reid where their Honours held that material disclosed as a result of compelled testimony that might, in turn, provide evidence to support criminal charges was 'a possibility against which the privilege protects.'[44]

49 The second principle which may be drawn from Reid is that there is no scope for an exception to the privilege, other than by statute: 'at common law, [the privilege] is necessarily of general application - a universal right which ... protects the innocent and the guilty.'[45] The Court acknowledged that the privilege may be abridged by statute or waived but 'that aside, it has generally been accepted that it is without real exception'.[46]

Observations on statutory construction in the context of the Charter

50 The interpretative obligation in s 32 of the Charter creates a new dynamic for the interpretation of legislation. In short, there is no single way to approach the interpretative task. It is apparent, however, that such consideration is now necessary in Victoria.[47] Of course, the ordinary principles of statutory construction are to be applied.

51 Following the direction provided by the Court of Appeal in RJE, the first step is to ascertain the ordinary meaning of the legislation according to normal principles of statutory construction and to determine whether a result may be reached without recourse to the Charter. In many instances, it may be possible to reach an appropriate conclusion without reference to the Charter.[48] This reflects the view that the character of human rights adjudication in the Charter mirrors the already well developed human rights jurisprudence at common law. This point was made recently by Maxwell P speaking extra-curially,[49] where he suggested that the task assigned to the court in s 32 of the Charter is 'as old as the common law itself'.[50]

52 It is axiomatic that courts will interpret legislation in a way that protects common law rights and in a manner that produces the least infringement where those rights are being limited.[51] Rights, freedoms and immunities appropriately recognised as fundamental will not be taken to be abolished, suspended or adversely affected in the absence of 'a clear expression of an unmistakable and unambiguous intention'.[52] In judging whether a right is fundamental, regard might be had to any relevant constitutional or statutory provisions and to the common law.[53] The special dynamic might be said to arise from s 32(2) of the Charter which expressly permits the court, when interpreting a statutory provision, to consider 'international law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right [under consideration]'.[54]

53 Where a result cannot be achieved in the usual course of interpretation, and recourse to the Charter is necessary, a variety of interpretative methods have been applied.[55] In RJE, Nettle JA endorsed the approach of Mason NPJ in HKSAR v Lam Kwong Wai[56] for its simplicity.[57] It is an approach I would apply and which will be significant later in my reasons as to the construction and application of s 7 of the Charter. Mason NPJ said in Lam Kwong Wai:

Our first task is to ascertain the meaning of [the relevant statutory provisions] according to accepted common law principles of interpretation as supplemented by any relevant statutory provisions. Our second task is to consider whether that interpretation derogates from [the rights in question] as protected by [the Charter]. If that question is answered 'Yes', we have to consider whether the derogation can be justified and, if not, whether it could result in contravention of the [Charter] ... and consequential [reinterpretation of the legislative provision consistently with the purpose of the Act or a declaration of inconsistency].[58]

What is the ordinary meaning of the legislation and can a result be reached without recourse to the Charter?

54 I adopt Smith J's construction of the Act in C v Chief Commissioner in which his Honour held,

the Act provides that no rules of evidence apply and no rules apply as to the manner of the questioning. The hearings are held in private. A person who fails to attend an examination or, having attended, refuses or fails to answer questions or refuses or fails to produce documents or things without reasonable cause is liable to a maximum term of imprisonment of five years ...

The privilege against self-incrimination is abrogated by s 39 with the result that a person who receives a witness summons is not excused from answering questions, giving information or producing documents or other things at an examination on the ground that to do so might tend to incriminate that person or make that person liable to a penalty. The Act, however, limits the effect of the abrogation of the privilege against self-incrimination by providing that any answer or document or other thing produced is not admissible against the person in question in a criminal proceeding or penalty proceeding ...

It is important to note other limits of the protection given. It does not extend, for example, to prevent the use against the person examined, in criminal or penalty proceedings against that person, of information or other evidence derived from the evidence, document or thing given by the person in the examination ...

To the extent that the evidence, information or documents produced in an examination can be used to gather evidence to use against the person summoned, the privilege is effectively removed.[59]

55 Despite the Act being silent on the derivative use of evidence, Smith J points out that derivative evidence is inferentially permitted, consistent with Parliament's intention as expressed in the Second Reading Speech for the Act which states,

[t]he limitation on the use of information or evidence obtained will not extend to the use of other information or evidence derived as a result of those answers in a criminal prosecution against the witness, nor the use of those answers in a prosecution against a third party. Whether the evidence can be used in other proceedings will depend upon the admissibility of that evidence as determined in accordance with the ordinary rules of evidence.[60]

56 This is also consistent with the principle that abrogation operates so as to remove all aspects of the privilege, leaving no immunity other than that for which the statute provides. It is apparent that under the ordinary meaning of the Act, the common law privilege is removed entirely, and is replaced only by a limited immunity in s 39(3) of the Act. This much was common ground between the parties.

57 The ordinary meaning of the legislation being so, are other means available that remove the necessity to turn to the Charter? In this regard, the applicant presented two lines of argument in support of an overall contention that the fair hearing right is best protected by the court at the hearing stage. The first is based on the statements of the High Court in Hammond[61] concerning the court's inherent power to prevent interferences with the course of justice. The second, relates to the trial judge's inherent discretion to exclude prejudicial or unfair evidence in the interests of securing the fairness of a trial.

58 Hammond stands for the principle that a person committed to stand trial upon a criminal charge must not be subjected to compulsory interrogation designed to obtain information from him as to the issue to be litigated at his trial. The case concerned the ability of a Commonwealth Royal Commission to compel a witness, Hammond, to give evidence relating to matters with which he had been charged and for which he was awaiting trial in Victoria, in circumstances where the Commissioner had directed Hammond to answer questions as to facts directly relevant to the issues to be litigated on the hearing of the charge against him. Hammond objected to giving evidence on the ground that he might incriminate himself. The evidence called plainly related to the alleged crime upon which Hammond had been committed for trial. Hammond sought injunctive relief on a number of grounds, including to prevent the Commissioner further examining him until the completion of the trial in Victoria.

59 The High Court granted an injunction on the following basis:

Once it is accepted that the plaintiff will be bound, on pain of punishment, to answer questions designed to establish that he is guilty of the offence with which he is charged, it seems to me inescapably to follow ... that there is a real risk that the administration of justice will be interfered with. It is clear that the questions will be put and pressed. It is true that the examination will take place in private, and that the answers may not be used at the criminal trial. Nevertheless, the fact that the plaintiff has been examined, in details, as to the circumstances of the alleged offence, is very likely to prejudice him in his defence.[62]

60 The Court came to this conclusion without reference to the privilege against self-incrimination. Murphy J held,

[Hammond] is awaiting his trial on indictment for conspiracy against the laws of the Commonwealth. He has a constitutional right to trial by jury (see Constitution, s 80). It is inconsistent with that right that he now be subject to interrogation by the Executive Government or that his trial be prejudiced in any other manner. I would take this view whether or not he has privilege against self-incrimination.[63]

61 The applicant relies on Hammond to assert that the Supreme Court, in its inherent jurisdiction, can make orders to prevent the interference with the course of justice in circumstances such as those identified in Hammond. There is little doubt that the court possesses such power and it is equally clear that neither Parliament nor the Executive is competent to prevent or prejudice the exercise by a court of judicial power in a way that would ordinarily constitute contempt of court.

62 It is theoretically possible that the process of investigation under the Act may, in certain circumstances, amount to an interference with the due administration of justice or constitute contempt of court, notwithstanding that the initial investigative process is valid and unobjectionable. However, it is far more likely that the circumstances in Hammond never arise in the course of an investigation under the Act.

63 The extent to which the law in Hammond may apply would be limited to instances where a person had been charged and was awaiting trial to then be summoned by the Chief Examiner to answer questions, the answers to which relate to the subject matter of the impending trial, thus creating a 'parallel non-judicial inquiry that follows the general form of a criminal trial, shorn of some of the privileges and safeguards, such as absence of compellability of an accused and observance of the ordinary rules of evidence, which protect an accused on trial in a court of law'.[64] For the sake of example, such a situation might arise where a person has been charged with murder and a trial is under way to determine that charge in a court of law. Pursuant to a pre-existing coercive powers order, the Chief Examiner summons the accused and compels him or her to answer questions about that specific charge of murder, the answers to which directly incriminate the accused. It seems to me that this eventuality is not only improbable but outside the parameters of the current issue for determination.

64 The applicant asserted on a number of occasions that the Act contemplates that a person may already be charged. It is not clear why this is so. In fact, the Act does not require that a witness ever be charged, and it is plain from the provisions of the Act that obtaining a coercive powers order is not conditional on a person being charged. Hammond can only apply where a person has been charged.[65]

65 Hammond must be understood in the context in which it was decided. The decision does not stand for a general power of the court to injunct investigative authorities who appear to pervert the course of justice merely because the investigative process that those authorities are applying mirrors that of eventual court proceedings. The mere fact that proceedings are pending in a court does not mean that any parallel or related inquiry, conducted for proper purposes, constitutes in itself an interference with the due administration of justice even where the court is hearing matters which are based on the subject matter of such inquiries.[66] The possible interference with the administration of justice must be understood in the following way:

it is fundamental to the administration of criminal justice that a person who is the subject of pending criminal proceedings in a court of law should not be subjected to having his part in the matters involved in those criminal proceedings made the subject of a parallel inquisitorial inquiry by an administrative tribunal with powers to compel the giving of evidence and the production of documents which largely correspond (and, to some extent, exceed) the powers of the Criminal Court. Such an extra-curial inquisitorial investigation of the involvement of a person who has been committed for trial in the matters which form the basis of the criminal proceedings against him constitutes ... an improper interference with the due administration of justice ... and contempt of court.[67]

66 The protection afforded by Hammond concerns the direct use of evidence relating to offences with which a person has been charged. By this present application, I am concerned with the use of derivative evidence, obtained from a person charged with an offence who has been questioned and who has provided information about offences linked to the offence with which he or she has been charged.

67 The applicant's second argument is also problematic. At common law, the trial judge retains a number of residual discretions to exclude evidence at trial in certain circumstances. A trial judge may exclude evidence on the ground that the effect of the evidence outweighs its probative value. So far as may be relevant later, a similar discretion is contained in the Evidence Act 2008 ('the Evidence Act').[68] A trial judge also retains a residual discretion to exclude evidence if receipt of the evidence would result in an unfair trial. That discretion is rarely exercised outside the context of confessions.[69] Similarly, the Evidence Act directs that evidence of an admission may be excluded if 'having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence'.[70] Finally, there is a common law discretion to exclude illegally or improperly obtained evidence.[71]

68 These discretions do not focus on the way in which the evidence in question was obtained, but rather on whether the use of the evidence is prejudicial or unfair, for example because the evidence is unreliable.[72] Whilst it is recognised that a trial judge is able to exclude derivative evidence on any of these bases, such exclusion remains entirely discretionary, there being no guarantee (as required by s 25(2)(k) of the Charter) that the discretion will be exercised in any given instance.

69 The ordinary rules of evidence very often would not exclude derivative evidence of the kind that is likely to arise in the process of an investigation to which a coercive powers order relates. There do not appear to be any reported cases where derivative evidence has been excluded for such reasons. The unfairness discretion contemplates confessions, which are 'direct' in nature, and therefore inadmissible in any case. It is highly unlikely that derivative evidence obtained under the Act would be excluded because it was obtained illegally; any such evidence would necessarily have been obtained legally pursuant to clear statutory authorisation under the Act.

70 The difficulty with the applicant's submission may be clarified by way of a hypothetical scenario. Let it be assumed that the investigative authorities have located amounts of methyl-amphetamine and a methyl-amphetamine manufacturing facility. They are investigating other possible manufacturing facilities involving suspects A, B and C. They have charged A with trafficking in a drug of dependence[73] but lack sufficient information to charge B and C.

71 The investigative authorities then obtain a coercive powers order in relation to the trafficking of a drug of dependence. The Chief Examiner issues a summons to A to appear and give evidence. In the course of questioning by the Chief Examiner, A is asked whether there are other facilities involving B and C and, if there are, where these are located. A answers the question, as required under the Act, and the Chief Examiner shares this information with the investigative authorities, as entitled to do so under the Act.

72 On the basis of A's answer, the investigative authorities locate a large quantity of methyl-amphetamine and a number of other manufacturing facilities. A's fingerprints and DNA are found on objects at these sites. The objects on which the fingerprints and DNA are found are derivative evidence.

73 Having located the derivative evidence, the investigative authorities are now satisfied that A has engaged in more serious crimes than that with which already charged and proceed to charge A with the far more serious offence of trafficking in a large commercial quantity of a drug of dependence.[74]

74 At A's trial, the answers given to the Chief Examiner are not admissible. In any event, the answers would demonstrate only that A knew where B and C were manufacturing methyl-amphetamine, not that A was involved in that manufacture. However, the prosecution seeks to tender the derivative evidence, that is, the fingerprints found at the various sites. The evidence is prima facie admissible; it is relevant, probative and does not constitute hearsay. On the applicant's submission, it is unclear how or why any of the common law discretions so described would operate so as to exclude the evidence. It is even more perplexing why the law in Hammond would change this outcome.

75 The applicant may suggest that where derivative evidence had been obtained in a way that would jeopardise a fair hearing, the trial judge would simply know to exclude the evidence. This argument must be dismissed. There is a prospect that the derivative evidence will be admitted and that, as a result, A will be convicted and punished for a crime at a significantly higher penalty than the charge originally faced as a result of his or her compelled testimony. The submission also overlooks a long established principle that the privilege is not a rule of evidence.[75] The applicant may also suggest, on the basis of the hypothetical example provided, that exclusion of such evidence would not be required to uphold A's rights. This is a separate issue altogether with which I will deal in due course.

76 Viewed more broadly, the applicant's proposed alternative is problematic because the focus of the common law discretion is on ensuring that a trial is not unfair, which is not coextensive with the right to a fair hearing that is protected by the Charter. The distinction was highlighted by Higgins CJ in R v DA which concerned the fair hearing right in the Human Rights Act 2004 (ACT):

The case of Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 indicates there is recognised at common law a right to not have an unfair trial, which is different from s 21 of the Human Rights Act 2004 (ACT) which confers a right to a fair trial. That is a very different emphasis. It seems to me that activates the remarks that Kirby J made in Nudd v The Queen [2006] HCA 9; 80 ALJR 614 where his Honour departed from the approach of the other members of the Court on that very distinction. The majority were looking at the question of the right to avoid, in respect of a trial, unfairness. His Honour referred to various Human Rights Conventions, including the International Covenant on Civil and Political Rights (ICCPR) upon which the Human Rights Act 2004 of this Territory is based, and as a result held that there is, or ought to be, a right recognised under common law to a fair trial.[76]

77 If a legislative regime of judicial supervision operated under the present Act, the applicant's argument may be persuasive. The court has no supervisory role in making a coercive powers order (although the court has inherent power to recall, vary and even revoke an order). Once the coercive power has been made, the matter moves away from the direct oversight of the court, unless an applicant or an individual chooses to bring it back to the court. Practically speaking, the Supreme Court may never see the matter again, especially if a future trial takes place in a court of different jurisdiction. There is no meaningful ability for the court to supervise the conduct of examinations and the subsequent use of evidence arising from them, and there is no guarantee that the normal rules of evidence would apply.[77]

78 Whether a result can be achieved without reference to the Charter must be answered in the negative. As it stands, the Act abrogates a privilege normally upheld at common law, and provides a direct use immunity. I do not accept the applicant's submission that the residual discretion of a trial judge to exclude evidence is a sufficient mechanism for upholding the rights contemplated by the Charter. It is coupled with too much uncertainty from the point of view of the bearer of the rights. As the applicant's argument is based on the inherent discretion of the court, it has the effect that the self-incrimination right may be protected at a later point in time, not that it will be protected universally. It is not clear that the common law discretion to exclude evidence[78] would operate as strongly to protect against incriminating derivative use as the Charter requires.

79 The question, then, is whether the abrogation, which is within legislative power, is consistent with the Charter. The applicant would have the court cease its analysis at this stage, but the fundamental question is whether the law as it stands is sufficient or whether, in addition, a derivative use immunity is required in order for the legislative regime to be compatible with the Charter.

80 Whether the Act limits rights is the critical disagreement between the parties. As already observed, human rights should be construed in the broadest possible way. The purpose and intention of Parliament in enacting the Charter was to give effect to well recognised and established rights in the criminal justice system.[79] The Charter should be construed in a way that is consistent with, and gives effect to, the right against self-incrimination. It should not be assumed that the Charter has narrowed traditional common law rights. Rather, the Charter's protection of the right against self-incrimination is at least as broad as the traditional common law right not to have an unfair trial and the right not to incriminate oneself. The Charter supports the approach that rights should be construed in the broadest possible way before consideration is given to whether they should be limited in accordance with s 7(2) of the Charter. That section serves the purpose of mitigating any damage to society that may arise from upholding an individual's right.

81 As I have already observed, the common law operated so that a person was not compelled to answer or respond in a way that would incriminate him or herself. If a person was not compelled to answer, by virtue of the right not only could their answer not be used against them, nor could any evidence derived from it, simply because there was no such evidence. As a matter of logic, the common law provided both direct and derivative immunity because a person could not be compelled to answer. Therefore, neither an individual's answers nor any information derived from those answers could be used against that individual.

82 In this regard, the applicant's reliance on Sorby[80] and Hamilton[81] is misconstrued. Sorby dealt with complicated issues arising from a Commonwealth Royal Commission as to whether there was abrogation of the privilege under various Commonwealth and Queensland statutes. Hamilton also dealt with abrogation of the privilege in the context of the Companies (New South Wales) Code. Both cases were principally about whether the privilege against self-incrimination can be abrogated and the consequences of the abrogation. The cases are of little assistance in determining whether the abrogation is consistent with the Charter. In Hamilton, Mason J said, 'the inherent power [of the court] is not a charter which enables a court to turn its back on the statute'.[82] This remark was, of course, made in the context of s 541 of the Companies (New South Wales) Code, which provided for court supervised questioning of the witness. To the extent the applicant relies on Hamilton to submit that the court's inherent power enables it to protect the fair hearing right, it must be understood that this court has no specific power under the Act. It is difficult, in the circumstances, to extract guidance from the reasoning in Sorby or Hamilton which were concerned with differently cast statutes.

83 The applicant's contention seems to be that these authorities have changed the nature of the privilege at common law. On proper analysis, the effect of the applicant's submission is that in relation to the right not to incriminate oneself, the protection that the Charter offers is narrower than the common law. In my view, this proposition is misconceived. What the applicant's submission does demonstrate, however, is the unique position the court now finds itself in. It is clear that the statute can abrogate the right without providing any immunity, and that this is within legislative power. However, it is unclear what constitutes abrogation within power now that such abrogation must meet the requirements of the Charter.

84 It is not an ordinary step to require an accused person who is already charged with a criminal offence to attend before a person investigating the crimes for which that person may have been charged, and to require that person to answer questions without some appropriate guarantees that their answers will not be used against them. The way the Act is currently applied is a breach of ss 24(1) and 25(2)(k) of the Charter because no distinction can meaningfully be drawn between the harm that may flow from incriminating information provided directly and incriminating evidence derived from such information. From the witness's perspective, derivative information can present consequences as damaging as the original, self-incriminating information. An answer compelled from a witness, although not itself available to be used, could point investigators in a direction allowing them to obtain admissible evidence against that person. In such a way, in truth, the accused person will have been forced to testify against him or herself and in effect to confess guilt contrary to the requirements of the human right.

85 I have already set out one hypothetical example that demonstrates some of the difficulties that may arise from the use of derivative evidence. Other problems can also be envisaged.

86 Let it be assumed that an individual is charged with drug trafficking charges and is compelled to answer questions. As a result of the answers given, the identity of other individuals is brought to light. The investigators subsequently investigate and question those individuals, revealing information that would otherwise be admissible to implicate the first person on a totally unrelated charge of murder. As a result of the compelled testimony, the individual may be convicted of a far more serious offence. The issues that arise in this scenario are similar in nature to those which may arise from third party testimony.

87 Let it be assumed that the police suspect a group of persons of involvement in organised crime. They seek and obtain a coercive powers order in relation to the crime concerned. The Chief Examiner then issues a summons to X to give evidence in relation to the crime, as he is of the view that X has relevant evidence to give.

88 In the course of questioning, X identifies several persons he or she says have been involved in organised crime offences. One of those identified was not a person previously known to the police, Y. As a result of X's testimony, the Chief Examiner issues a summons to Y to give evidence. In the course of Y's evidence, he or she implicates X in relation to an offence involving assault.

89 As a result of Y's testimony to the Chief Examiner, the police charge X with intentionally causing serious injury pursuant to s 16 of the Crimes Act 1958.[83] At trial, the prosecution seeks to call Y to give evidence of X's involvement in the offence (the derivative evidence). X objects to the admission of Y's evidence, on the ground that it was obtained solely as a result of X's compelled testimony.

90 From the point of view of the evidence which may be admissible at trial against X, the answers X gave to the Chief Examiner are not themselves admissible. Y's answers to the Chief Examiner's questions are also likely to be inadmissible, as they may constitute hearsay. However, on the assumption that Y can give direct evidence of X's commission of the offence, the derivative evidence is relevant, probative and does not constitute hearsay. It is, therefore, prima facie admissible.

91 Another example of derivative evidence that may be admitted at the trial of a person compelled to testify against him or herself is the example of the computer encryption key.[84] Let it be assumed that the investigative authorities discover Z in possession of a computer that they have reasonable grounds to believe contains evidence relating to an organised crime offence. The data on the computer cannot be read without the encryption key. The police seek and obtain a coercive powers order and the Chief Examiner issues a summons to Z to testify. At the return of the summons, the Chief Examiner asks Z to reveal the encryption key. As required by the Act, Z answers the question and the Chief Examiner shares this information with the police.

92 On the basis of Z's answer, the police are able to examine the data on the computer and they obtain incriminating derivative evidence which could not have been obtained without Z's compulsory testimony. The police are now satisfied that Z has committed an offence and he is charged. As with the previous examples, the derivative evidence is prima facie admissible, the result of which may be that Z is convicted of an offence as a result of his own compelled testimony.

93 A similar example can be envisaged in relation to the location of a missing person presumed murdered, whom the police believe is missing as a result of an organised crime offence. Let it be assumed that the investigative authorities suspect X in the involvement of the person's disappearance. The police seek and obtain a coercive powers order and the Chief Examiner issues a summons to X. At the return of the summons, the Chief Examiner asks X about the whereabouts of the missing person. X informs the Chief Examiner that the person is deceased and that the body is buried in a remote and densely forested expanse of terrain.

94 Until X's testimony, there was no possibility that the investigators would have been able to uncover the location of the body. In fact, they did not know that the body had been buried at all. As a result of the derivative evidence coming to light (the fact of a body being buried at that location) the police are then able to embark upon a source of inquiry. The key link is X's compelled testimony. As a result of X testifying as to the location of the buried body, it is likely that other evidence will be found and that X will be convicted as a result of what of he or she was forced to divulge to the Chief Examiner.

95 These examples demonstrate that, as matters currently stand, the Chief Examiner is able to obtain the benefit of the original abrogation and to use it against the witness, while still complying with the requirements of the use immunity. Derivative use of the information can have the same consequences for the witness as would use of the original information. This is the fundamental problem posed by the Act with regard to the rights under the Charter. The problem was raised with counsel for the applicant a number of times but was not adequately answered. In my view, Parliament cannot be understood as having enacted organised crime legislation in such a way as to provide a 'back-door' to prosecuting authorities to use compelled incriminating testimony against the testifier.

96 Despite the difficulty of the problem, it is not clear from the terms of the Charter, nor from any extrinsic materials, as to what form of immunity must be provided when the privilege against self incrimination is abrogated so as to comply with the right against self-incrimination. Section 32 directs that the court may draw from the judgments of domestic, foreign and international courts and tribunals relevant to the human right in question. The power to do so is exercised at discretion.[85] The novelty of the issue requires analysis of foreign law. The parties were unable to assist me with any relevant Australian authority for this purpose. I am of the view that assistance may be gained from international and comparative approaches to determine how to address the problem faced.

97 The approach to the right to a fair hearing and the right against self-incrimination in other jurisdictions is not uniform. Some jurisdictions require a derivative use immunity for consistency with rights (Canada[86] and the United States[87]); others do not (South Africa[88] and Hong Kong[89]). Others are yet to adopt a clear position (International Covenant on Civil and Political Rights and Europe[90]). The applicant submitted that by virtue of the nature of the human rights instruments in some jurisdictions being constitutional in effect (conferring power on the courts to invalidate laws inconsistent with the human right in question), this court should not have regard to jurisprudence flowing from these instruments. It seems to me that the only difference of importance between such instruments and the Charter is in the remedial powers of the courts under such instruments. This fact alone should not impact on the question of whether jurisprudence from these jurisdictions may be of assistance in determining comparable principle.

98 The applicant contends that comparable principle is found in the Hong Kong case of Lee Ming Tee.[91] That case concerned two individuals charged with conspiracy and publication of a false statement of account. The charges related to the issue and placement of a substantial number of shares in several of the companies in which the accused where board members.

99 Some time before criminal proceedings were instituted against the accused, the Hong Kong Financial Secretary appointed an inspector pursuant to powers in the Companies Ordinance, to investigate and report the affairs of these companies, including the share placement transaction performed by the accused. The accused were compulsorily questioned and provided materials relating to the subject matter of the questioning. In the lead up to the publication of a report on these matters, the criminal proceedings against the accused were stayed by a judge at first instance for a variety of reasons, one of which included the inability for the accused to receive a fair trial due to compelled testimony provided to the inspector.

100 On appeal to the Hong Kong Final Court of Appeal, a number of certified questions were formulated for determination including the following:

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?[92]

101 Specifically, the issue was whether the Hong Kong Financial Secretary was entitled to hand over the compulsorily obtained materials to the prosecuting authorities and, whether the authorities were entitled to use the materials to acquire evidence for the prosecution of the accused from other sources.

102 It was not in question that the ordinance empowering the Hong Kong Financial Secretary to investigate abrogated the privilege against self-incrimination. The abrogation took effect in the same way as the Victorian Act, first 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, and secondly, by providing that if the person claimed the privilege before answering then, although an answer must nevertheless be given, the ordinance replaced the privilege with a direct use prohibition.

103 The question for the court was whether a free-standing derivative use immunity capable of surviving statutory abrogation of the principle operated at common law. The leading judgment was delivered by Ribeiro PJ[93] who concluded that derivative use immunity does not exist as a free-standing common law concept or doctrine:

[w]here the privilege against self-incrimination is overridden, in the absence of any binding restriction on use ... 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. Accordingly, in the present case, as a matter of statute and common law, the prosecution was entitled to make derivative use of the company inspection materials handed to the police by the Financial Secretary.[94]

104 Ribeiro PJ held that in the context of statutory abrogation of the privilege, immunity did not arise by common law, but by statute as a matter of statutory construction. In overturning the decision at first instance, Ribeiro PJ referred to the 'strong persuasive authority' of Hamilton.[95]

105 Ribeiro PJ drew on various common law doctrines and watershed decisions in support of there being no freestanding derivative use immunity.[96] First, Ribeiro PJ found that the common law itself allows the use of derivative evidence even where its source is an inadmissible confession:

[t]he common law in this area of the law of evidence [deals] with the situation where (i) an accused's privilege against self-incrimination has been unlawfully abrogated by a confession being improperly obtained from him; (ii) the common law imposes a direct use prohibition by excluding the involuntary confession as inadmissible; but (iii) the common law admits independent evidence against the accused even though it is derivative evidence obtained by using the excluded confession (subject always to the court's general residual discretion to exclude evidence where this is necessary to secure a fair trial for the accused).[97]

106 Secondly, Ribeiro PJ referred to the judgment of Lord Wilberforce in Rank Film Distributors,[98] holding that his Lordship's statements support that there is no residual common law derivative use immunity.[99] Ribeiro PJ pointed out that the House of Lords, in protecting a party from derivative use of information, was responding to a submission by the plaintiff in that case in favour of treating the privilege as abrogated on the basis of an undertaking that the information would not be used in criminal proceedings. Due to the House of Lords deciding in Rank Film Distributors that the privilege should not be abrogated at all, thus protecting the defendant from both direct and derivative use of any answer, the decision demonstrates that a judicial order to the contrary would abrogate the privilege in its entirety, leaving no residual immunity, a possibility the House of Lords was trying to avoid. It is implicit in Rank Film Distributors, that an abrogation of the privilege against self-incrimination, even if accompanied by an undertaking against use in future prosecution, would not prevent derivative use.[100]

107 Having established the ordinary meaning of the legislation, Ribeiro PJ turned his attention to the self-incrimination right as it is expressed in article 11(2)(g) of the Hong Kong Bill of Rights ('Rights Ordinance'). That article provides:

(2) In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality ...

(g) not to be compelled to testify against himself or to confess guilt.

108 Ribeiro PJ identified the common law privilege as 'a general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions the answers to which may incriminate them',[101] and held that

[a]rticle 11(2)(g) ... only applies to persons who face a criminal charge and the immunity then conferred is only a testimonial immunity, namely, the right 'not to be compelled to testify against himself or to confess guilt'. It is therefore of a much narrower scope than the common law privilege against self-incrimination and had no application at the time of the company inspection since neither respondent had been charged at that time.

...

Derivative use of independently obtained evidence, even if obtained pursuant to clues provided by the compelled testimony falls outside the purview of Article 11(2)(g) since, in adducing such independent, albeit derivative, evidence, the prosecution does not seek to compel either respondent to testify against himself or to confess guilt.[102]

109 Ribeiro PJ went on to consider whether, at a higher level, use of derivative evidence is inimical to the concept of a fair trial as contained in articles 10 and 11(1) of the Rights Ordinance. Article 10 of the Right Ordinance provides:

10 Equality before courts and right to fair and public hearing

All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.

110 Article 11(1) of the Rights Ordinance provides:

Rights of persons charged with or convicted of criminal offence

(1) Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

111 Applying the proportionality test in Brown v Stott,[103] he concluded that the fairness of trial must be assessed, not in absolute terms, but by striking a balance between the general interest of the community in realising the legislative aim and the protection of the fundamental rights of the individual.

112 In Lee Ming Tee, Ribeiro PJ concluded that derivative use should be inferentially permitted by an abrogating statute that attempted to meet 'a genuine social evil':

There is much to be said for the general proposition that there is no inherent unfairness in establishing a person's guilt by the use of reliable objective evidence obtained from an independent source, even if the acquisition of that evidence was facilitated by clues contained in the excluded admissions.[104]

113 Lee Ming Tee is an important decision. It was decided on the terms of the Rights Ordinance which bear many similarities to the Charter. The question it dealt with, that is, whether a free-standing derivative use immunity exists at common law once the privilege has been abrogated by statute, falls to me for careful consideration. However, for various significant reasons, the decision has limited application to the Victorian context.

114 By contrast with the statutory circumstances before the Hong Kong court, s 32 of the Charter requires this court to consider whether the abrogation contained in s 39 of the Act is consistent with the rights in ss 24(1) and 25(2)(k) of the Charter. It requires more than an acknowledgment and application of the principle in Hamilton.[105] It is clear that the legislature has the power to abrogate the privilege and that such abrogation will extinguish all immunity, but it is unclear as to the immunity that must be provided once the privilege is abrogated so as to comply with the Charter. In Lee Ming Tee, the court emphasised the former and was not, it seems, required to consider the latter.

115 Section 7(2) of the Charter directs that limitations on the rights and freedoms enunciated in the Charter are exceptions to their general guarantee. The presumption appears to be that the rights are guaranteed unless the party invoking s 7(2) can bring him or herself within the exception criteria which justify the rights being limited. If it was intended that a more limited view of the rights expressly contained in the Charter be applied by the court, it is difficult to imagine why s 7(2) would be necessary. The rights themselves would have internal limitations. This approach has been adopted and consistently applied by the Supreme Court of Canada[106] in construing the Canadian Charter of Rights and Freedoms ('Canadian Charter'), s 1 of which poses an identical test to that in s 7 of the Victorian Charter. It provides:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

116 This is not to suggest that in Hong Kong limitations are made more readily, rather, to say the test is of a different nature. While the Rights Ordinance does not have an express equivalent to s 7 of the Charter, it was held by the Hong Kong Court of Final Appeal in HKSAR v Lam Kwong Wai that:

Section 1 of the Canadian Charter of Rights and Freedoms provides that the rights protected by the Charter are subject to: '... such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society'. The South African Constitution has a similar provision, section 33(1), though more explicit as to the permissible derogation. Whilst there is no such express general saving device in the Hong Kong Bill of Rights Ordinance or, for that matter, in the ICCPR as applied by the Basic Law, it has been the law in Hong Kong since R v Sin Yau-ming [1992] 1 HKCLR 127, that a justification provision is to be implied (emphasis added). [107]

117 In my view, as a matter of statutory construction, the Canadian approach is more helpful than the approach taken in Lee Ming Tee in the Victorian context. It seems to me that the Canadian approach more readily responds to the second task of interpretation laid down by Mason NPJ in Lam Kwong Wai. It is impossible to know whether the interpretation of the Act derogates from the right in question if the scope of the right has not first been properly established.

118 Starting from the premise that fundamental rights are to be identified not only from the terms of the Charter but also from relevant constitutional or statutory provisions and the common law, it is abundantly clear that the privilege against self-incrimination is neither constitutional nor statutory in nature. It is, at its source, a common law right. The purpose of the Charter is to give effect to such well recognised and established rights.[108] As explained, the right against self-incrimination extends to derivative evidence. It follows then that the scope of ss 24(1) and 25(2)(k) of the Charter must be ascertained by proceeding from the common law. In holding that the Rights Ordinance is more limited than the common law by virtue of the terms of the Ordinance, Ribeiro PJ in Lee Ming Tee followed a path of reasoning different from that laid down by the High Court in Reid.[109] In this jurisdiction the right against self-incrimination would not be any less extensive than that articulated by the High Court in that case. It is only after the right the subject of the minimum guarantee has been established that a party seeking to limit it may proceed to 'demonstrably justify' such a limitation.

119 In Lee Ming Tee, the court found that the Rights Ordinance validly upheld the right to a fair and public hearing. This conclusion was reached by applying the proportionality test. The court did not have cause to first establish the scope of the minimum guarantee of a fair and public hearing. This may explain why the approach in Lee Ming Tee diverges from that in Thomas[110] and Kracke[111] to the effect that the rights in s 25(2) of the Charter co-exist and compliment the fair hearing right in s 24(1). Under the Charter, concerns about balancing competing rights and interests are better dealt with by the express mechanism for limitation specified in s 7(2). I note also that to the extent the court's conclusions in Lee Ming Tee are supported by Australian authorities, Reid does not appear to have fallen for consideration.

120 Similarly, the approach applied by Ribeiro PJ in Lee Ming Tee to Rank Film Distributors cannot be easily applied at this point in the interpretative process under s 32 of the Charter. Rank Film Distributors was an appeal concerning the validity of an Anton Pillar order which fell under three heads of order: the first requiring the respondents to supply information; the second requiring the respondents to allow access to premises for the purpose of looking for illicit copy films and to allow their being removed to safe custody; and the third requiring the respondents to disclose and produce documents.

121 Lord Wilberforce held that the supply of the information and production of the documents sought would tend to expose the respondents to certain criminal charges in the nature of conspiracy to defraud. His Lordship refused the appellants proposal for an undertaking not to prosecute the respondents on the basis that if production of the documents was allowed pursuant to such an undertaking, inadequate protection would flow to the defendants. The protection would only operate as a protection against prosecution by the plaintiff himself and would not have been binding on law enforcement authorities. More generally, the respondent's proposal met with the fundamental problem that a court of civil jurisdiction does not have the power, and should not presume to have the power, to bind a criminal court by declaring compulsorily disclosed evidence inadmissible.

122 It seems Lord Wilberforce was guarding against allowing orders to be made that would have the consequence of exposing incriminating material, including directly incriminating material, and unfairly setting 'in train a process which may lead to incrimination or ... to the discovery of real evidence of an incriminating character',[112] contrary to the requirements of the privilege. It is apparent that it was on this basis that Lord Wilberforce came to this conclusion, highlighting the importance of derivative use immunity to the common law right.

123 Rank Film Distributors was decided at equity. Reid, which was influenced by the views expressed by Lord Wilberforce in Rank Film Distributors, was decided within the context of the court 's inherent discretion to make orders of an interlocutory nature.[113] It is significant that both Reid and Rank Film Distributors were decided outside of any statutory regime that allowed for an abridgement or curtailment of the privilege. This context allows an appreciation of the nature of the right against self-incrimination in its pure form.

124 In Reid, the respondents brought proceedings in the Supreme Court of New South Wales seeking an interlocutory order requiring disclosure of assets and the source of funds from the appellant, who was suspected of fraudulent activities, but for which no formal charges had been formulated. The Court of Appeal considered that it had power to make orders 'so as to effectively enforce the respondents' civil rights against the appellant while protecting him against the risk of self-incrimination'.[114] The High Court overturned the orders made by the Court of Appeal, holding that they were ultra vires, there being no scope for an exemption to the privilege against self-incrimination, other than by statute. The missing protection in the orders of the Court of Appeal in Reid was similar to the missing protection of the undertaking proposed by the appellant in Rank Film Distributors, namely, there was no guard against incrimination by derivative evidence,

the protection intended by the orders of the Court of Appeal is more limited than that afforded by the privilege. In particular, the orders do not operate, of their own force, to prevent the material disclosed in the affidavits from being used as the basis for investigations which might, in turn, provide evidence to support criminal charges - a possibility against which the privilege protects.[115]

125 Finally, I find the common law doctrines referred to in Lee Ming Tee in support of there being no freestanding derivative use immunity difficult to apply to the Victorian context because the authorities referred to provide no clear principle on which an exception to the general rule could be based. I am not assisted by common law doctrines that may allow derivative evidence sourced from illegal confessions in certain circumstances, nor by the trial judge's discretion to exclude evidence to secure the fairness of trial.

126 To recapitulate, a court of original jurisdiction always has a discretion to exclude evidence improperly obtained if to admit that evidence would unfairly prejudice a defendant. However, to 'substitute for a privilege a dependence on the court's discretion would substantially be to the defendant's detriment'.[116]

127 I intend to adopt an approach consistent with the modern principles of statutory construction as laid down by the High Court. Despite the new dynamic the Charter provides, it should be construed purposively and consistently with the enunciated principles of statutory interpretation. In CIC Insurance Ltd v Bankstown Football Club Ltd, the High Court stated:

the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent (footnotes omitted).[117]

128 It appears that these principles meet the particular statutory dynamic the Charter creates. In my view, s 32 requires the court to consider and apply comparable principle that corresponds with the High Court's approach in CIC. To adopt the approach in Lee Ming Tee would be to overlook the context of the Charter 'in its widest sense [including] such things as the existing state of the law and the mischief ... the [Charter] was intended to remedy'.[118] It seems to me that this notion of 'context' aligns with the reasoning of the Supreme Court of Canada in R v Big M Drug Mart Ltd in which it was stated with regard to the Canadian Charter:

The meaning of a right or freedom guaranteed by the Charter was to be ascertained by an analysis of the purpose of such a guarantee; it was to be understood, in other words, in the light of the interests it was meant to protect ... This analysis is to be undertaken, and the purpose of the right or freedom in question is to be sought by reference to the character and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms.[119]

129 Canadian law recognises a form of derivative use immunity in the event of statutory abrogation of the privilege. This immunity is required in some form to uphold the rights in ss 7 and 11(d) of the Canadian Charter.

Life, liberty and security of person

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

131 Section 11(d) of the Canadian Charter provides:

Proceedings in criminal and penal matters

11. Any person charged with an offence has the right

...

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

132 In interpreting the requirements of these provisions in relation to the right against self-incrimination, the Supreme Court of Canada has extensively articulated general principles regarding the relationship of self-incrimination to the criminal law in the broad sense. In this respect, testimonial compulsion has been invariably linked with evidentiary immunity. This jurisprudence has developed through majority decisions of the court in S(RJ),[120] Branch,[121] Phillips,[122] and Re Application.[123] Three procedural safeguards on self-incrimination have emerged: use immunity, derivative use immunity and constitutional exemption. My present concern is with the second of these safeguards.

133 It seems to me that the intervener's reliance on Canadian authorities is of assistance because Canadian law recognises the existence of derivative use immunity in a similar manner to the common law of Australia, and also applies a purposive approach to the interpretation of the Charter. The Canadian Supreme Court decision of S(RJ) is a helpful starting point to determine comparable principle. Iacobucci J, delivering the majority judgment,[124] articulated four meanings for derivative evidence as follows:

(1) evidence that could have been discovered only as a result of the testimony; (2) evidence that was discovered as a result of the testimony, but that could have been discovered without such testimony; (3) evidence that would, or would probably, have been discovered even without the testimony; and (4) evidence that was discovered after the testimony was given, but independently of the testimony.[125]

134 These categories are a helpful description of the different ways derivative evidence may relate causally to a person's compelled testimony. The causal links between an individual's compelled evidence and the use that may be made of evidence that derives from it are essential to understanding whether any limitations in the Act on the right against self-incrimination may be justified in a free and democratic society. It is the causal link that will determine in each case whether the right has in fact been limited.

135 In assessing the four categories of derivative evidence, Iacobucci J held that, in Canada, the accused must be protected from derivative evidence of the nature of category (1):

[D]erivative evidence which could not have been obtained, or the significance of which could not have been appreciated, but for the testimony of a witness, ought generally to be excluded under s. 7 of the Charter in the interests of trial fairness. Such evidence, although not created by the accused and thus not self-incriminatory by definition, is self-incriminatory nonetheless because the evidence could not otherwise have become part of the Crown's case. To this extent, the witness must be protected against assisting the Crown in creating a case to meet.[126]

136 His Honour also observed that a derivative use immunity could, by parity of reasoning, be found in s 11(d):

I have developed a residual derivative-use immunity with primary regard for s. 7 of the Charter. However, as La Forest J. observed in Thomson Newspapers, to the extent that it is a concern for trial fairness which predominates the analysis, the analysis could properly proceed with reference to the more specific language of s. 11(d). But since the same issues would fall to be considered under either provision, I think an examination under s. 7 is sufficient - if not exhaustive - in this case.[127]

137 The 'but-for' test developed in S(RJ) operates so as to require an immunity in relation to evidence that could not have been obtained, or the significance of it appreciated, but for the compelled testimony of the accused.

138 I note that in S(RJ), the question before the court was whether an accused person, separately charged with an offence, was compellable as a witness in the criminal trial of another accused charged with the same offence. It was contended by the witness that to compel him to testify at his co-accused's trial would violate the principle of fundamental justice under s 7 of the Canadian Charter. The Court was primarily concerned with the compellability of the witness and the Canadian Evidence Act 1985, which governs the use of evidence in judicial proceedings. Four justices (as reflected by Iacobucci J's reasons) accepted that the derivative use immunity required by the Canadian Charter did not have to be expressly contained in the local Evidence Act, but was sufficiently protected by the judge's discretion to exclude evidence. The fundamental difference is that the precedent established in S(RJ), being a constitutional determination requiring derivative use immunity in the form described, empowered the trial judge to exclude evidence on that basis, as opposed to the current limitations the trial judge faces at common law as previously discussed.

139 I am encouraged in my conclusion by the Canadian Supreme Court decision of Re Application[128] on which the intervener relied for its parity with the issue before me. In Re Application, the court considered the constitutional validity of s 83.28 of the Criminal Code which provided for an order that a named person attend a judicial examination in relation to suspected terrorism offences. The court explained the operation of s 83.28 as follows:

Section 83.28 provides for a two-stage process, whereby an order for the gathering of information from a named individual is first issued, and an examination of the individual so named is subsequently held. The provision provides a series of parameters which govern the judicial investigative hearing. At its core, s. 83.28 permits the investigation of terrorism offences, at both a pre- and post-charge stage through testimonial compulsion on the part of the named witness. Consequently, the purpose of the provision is to confer greater investigative powers upon the state in its investigation of terrorism offences.[129]

140 The regime in issue is similar to the regime under the Act, except that s 83.28 provides for both direct use immunity and derivative use immunity in relation to compelled testimony. A notable difference between the two regimes, however, is that s83.28 provides for judicial supervision of the execution of the order.

141 The court went on to consider whether the compulsory questioning of a named person violated s 7 of the Canadian Charter. It held that it did not, because the statute included both direct use and derivative use immunity, as required by the Canadian Charter.[130]

142 In my view, the problem raised is one of critical importance to human rights in this jurisdiction. As explained by Kirby P in Ganin v NSW Crime Commission,

an answer compelled from a witness, although not itself available to be used, could point investigators in a direction allowing them to obtain admissible evidence against that person. In such a way, in truth, the accused person will have been forced to 'testify against himself' and in effect, 'to confess guilt', contrary to the requirements of this fundamental human right.[131]

143 Section 39(1) of the Act limits the right to a fair hearing and the right not to testify against oneself because it requires people to testify against themselves and then fails to protect them from derivative use of their testimony.

Is section 39 of the Act a reasonable limit that can be demonstrably justified by reference to s7?

144 Section 7 of the Charter[132] demonstrates that the rights guaranteed by it are not absolute. The Charter acknowledges that, in some instances, it is necessary to limit rights in circumstances where the exercise of the right would interfere with the operation of a free and democratic society. Section 7 provides the criteria by which a limitation on rights might be justified. Hence, limitations on rights are permissible only when limited in accordance with s 7. The question then becomes, is the limitation on the right against self-incrimination as guaranteed by ss 24(1) and 25(2)(k) of the Charter 'demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors'?

145 A free and democratic society is the fundamental hallmark of our system of governance and way of life. Notions of the 'public interest' stem from notions of what is best for a free and democratic society. I find I am assisted by the remarks of Dickson CJ in Oakes:

The Court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society. The underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter and the ultimate standard against which a limit on a right or freedom must be shown, despite its effect, to be reasonable and demonstrably justified.[133]

At a glance

Court

Decision date

Before

Source

Judgment (380 paragraphs)

Parties

Legislation Cited (11)

Cases Cited (24)