Bayeh -v- State Government of New South Wales & Anor [1999] NSWSC 1070

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

011915/99 - Louis BAYEH -v- State Government of New South Wales & Anor

1 HIS HONOUR: The plaintiff, Mr Louis Bayeh, proceeds by way of Amended Summons filed in court on 24 August, 1999, seeking relief in the nature of declarations and orders against the State of New South Wales, first defendant, and Parole Board of New South Wales, second defendant. 2 The second defendant has filed a consenting appearance. 3 Counsel for the plaintiff and counsel for the first defendant are in agreement that the only issue for determination by the Court is the question raised in paragraph 1(a) of the Amended Summons which seeks, on behalf of the plaintiff, a declaration in the following terms:- "1(a). A declaration that the Parole Board took into account matters of evidence that it was not entitled to take into account…". 4 The declaration which is sought, relates to hearings before the Parole Board (the second defendant), concerning the plaintiff. 5 The hearings took place on 25 June and 2 July of this year and it is anticipated that the question of the plaintiff's release on parole will come back before the Parole Board on 12 November next. 6 Determination by this Court of the question raised in the declaration now sought, will, it is said, bear upon the evidence to be adduced or relied upon at the pending hearing. 7 The background of relevant events is the following. 8 His Honour Judge Stewart, sitting as an Acting Judge of the District Court, sentenced the plaintiff to a term of 4 years imprisonment which, following a finding of special circumstances within the meaning of S 5(2) of the Sentencing Act, 1989, was comprised of a minimum term of 2 years with an additional term of 2 years. 9 It is common ground that in determining this sentence, the sentencing judge reduced the overall sentence by 1 year to take into account assistance given by the plaintiff to police, pursuant to the relevant provisions of the Crimes Act, 1900. 10 The sentence above referred to was passed on 14 November, 1997, but was deemed to have commenced in July, 1997. The minimum term accordingly expired in July, 1999. 11 There are, however, two further outstanding charges:

(a) A charge of demand money with menaces, relating to events occurring in the late 1980's, in regard to which the plaintiff was granted bail of $10,000. The plaintiff was apparently on bail at some stage following this grant of bail, and;

(b) A charge of conspiracy to supply prohibited drugs, regarding which the plaintiff was granted self-bail. 12 To both charges (a) and (b), the plaintiff has entered pleas of not guilty. They have not been dealt with by the court and are for mention on 30 November next. 13 During the course of the first Parole Board hearing, the Chairman, in the words of Mr Waterstreet, counsel for the plaintiff, " - raised the prospect of his own motion whether the Parole Board would have access to the evidence Mr Bayeh gave before the Royal Commission (Police Service) and ICAC". 14 Mr Waterstreet stated that in the proceedings before the Police Royal Commission the plaintiff, having taken objection to giving evidence on the basis of self incrimination, gave "many days" of evidence "… indicating who he bribed and matters of notoriety in relation to activities in Kings Cross and other areas". Before ICAC the plaintiff, having once again taken objection, gave evidence relating to the inquiry into Mr Gibson, a parliamentarian. 15 The plaintiff was represented by his solicitor, Mr Hovan, before the Parole Board on each occasion. In placing the evidence given by the plaintiff at both the Police Royal Commission and ICAC, before the Parole Board, Mr Hovan sought to qualify the tender of his client's evidence as being receivable by the Parole Board to be used in favour of the plaintiff but, in his submission per force of statutory protection, it could not be used against the plaintiff, in the sense that it was not open to the Parole Board to draw an inference adverse to the plaintiff from the tendered evidence. 16 The submission was made by Mr Waterstreet that on any reading of the interchange between the Parole Board and Mr Hovan, the evidence was used adversely or, as I understand the submission, was being used by the Parole Board to consider, in an adverse light, the release to parole of the plaintiff. 17 The jurisdiction of this court to make the declaration sought, which is in the nature of an interlocutory step, designed, so it is submitted, to assist the parties in the further determination of the release of the plaintiff to parole is sought as an exercise of the Court's discretion. 18 Certainly this application is not founded upon a right of appeal, arising pursuant to the Sentencing Act, 1989, which provides in S 23 for applications to the Court of Criminal Appeal for directions where the Board has decided that a prisoner should not be released on parole and the prisoner alleges that the decision of the Board was made on information which was false, misleading or irrelevant (S 23(1)(a) and (b)). 19 Mr Saidi, counsel for the first defendant, in his helpful written submissions, has made reference to the appeal provisions arising under S 23 and notes that "… arguably (the plaintiff) seeks to circumvent the appropriate appeal procedure by the bringing of this application, at least in relation to some of the grounds relied upon". This submission was made at a time when some six declarations and orders, as set out in the Amended Summons, were apparently in issue. Since that time, the relief sought by the plaintiff has been confined to a single issue, and that issue even further refined in the manner to which I shall shortly refer. 20 No argument to the contrary of this Court having jurisdiction has been advanced by the first defendant and in the circumstances, it seems to me that this Court should offer assistance by resolving the issue as presently presented. 21 The Independent Commission Against Corruption Act, 1989 relevantly provides in S 37 as follows:- "37. Privilege as regards answers, documents etc (1) A witness summoned to attend or appearing before the Commission at a hearing is not entitled to refuse: (a) to be sworn or to make an affirmation or, (b) to answer any question relevant to an investigation put to the witness by the Commissioner or other person presiding at a hearing, or (c) to produce any document or other thing in the witness's custody or control which the witness is required by the summons or by the person presiding to produce. (2) A witness summoned to attend or appearing before the Commission at a hearing is not excused from answering any question or producing any document or other thing on the ground that the answer or production may incriminate or tend to incriminate the witness, or on any other ground of privilege, or on the ground of a duty of secrecy or other restriction on disclosure, or on any other ground. (3) An answer made, or document or other thing produced, by a witness at a hearing before the Commission is not (except as otherwise provided in this section) admissible in evidence against the person in any civil or criminal proceedings or in any disciplinary proceedings. (4) Nothing in this section makes inadmissible: (a) any answer, document or other thing in proceedings for an offence against this Act or in proceedings for contempt under this Act, or (b) any answer, document or other thing in any civil or criminal proceeding or in any disciplinary proceedings if the witness does not object to giving the answer or producing the document or other thing irrespective of the provisions of sub-section (2), or (c) any document in any civil proceedings for or in respect of any right or any liability conferred or imposed by the document or other thing. (5) … (6) (Repealed)". 22 Section 38 provides as follows:- "38. Declaration as to objections by witness The Commissioner or person presiding at the hearing may declare that all or any classes of answers given by a witness or that all or any classes of documents or other things produced by a witness will be regarded as having been given or produced on objection by the witness, and there is accordingly no need for the witness to make an objection in respect of each such answer, document or other thing." 23 The Royal Commissions Act, 1923 in S 17 provides as follows:- "17. Answers and documents (1) A witness summoned to attend or appearing before the Commission shall not be excused from answering any question or producing any document or other thing on the ground that the answer or production may criminate or tend to criminate the witness, or on the ground of privilege or on any other ground. (2) An answer made, or document or other thing produced by a witness to or before the Commission shall not, except as otherwise provided in this section, be admissible in evidence against that person in any civil or criminal proceedings. (3) Nothing in this section shall be deemed to render inadmissible: (a) any answer, document or other thing in proceedings for an offence against this Act; (b) any answer, document or other thing in any civil or criminal proceedings if the witness was willing to give the answer or produce the document or other thing irrespective of the provisions of subsection (1); (c) any book, document or writing in civil proceedings for or in respect of any right or liability conferred or imposed by the document or other thing. (4) … (5) …". 24 The Royal Commission (Police Service) Act, 1994 provides in S 5 as follows:- " 5. Relationship with 1923 Act (1) This Act is to be read as if it formed part of the 1923 Act (but only for the purposes of the operation of this Act in relation to a Royal Commission to which this Act applies). A reference in any other Act to the 1923 Act does not include a reference to this act except as expressly provided by this Act. (2) The provisions of this Act are in addition to and not in derogation of any provisions of the 1923 Act, except as specifically provided by this Act. In particular, Part 2 of this Act does not limit or otherwise affect the provision of the 1923 Act with respect to a person summoned to attend or appearing as a witness before the Commission. (3) Nothing in the 1923 Act operates to constrain or restrict the exercise of a function conferred or imposed by or under this Act." 25 In Section 6 the power of the Commission to obtain information is set out and in S 7, the power of the Commission to obtain documents is set out. 26 The compensatory protections are to be found in S 9, which provides: " 9. Self-incrimination (s. 26 ICAC Act) (1) This section applies where, under S 6 or 7, the Commissioner requires any person:- (a) to produce any statement or information; or (b) to produce any document or other thing. (2) If the statement, document or other thing tends to incriminate the person and the person objects to production at the time, neither the fact that the requirement nor the statement, document or thing itself (if produced) may be used in any proceedings against the person (except proceedings for an offence against this Act or the 1923 Act). (3) They may however be used for the purposes of the Commission's inquiry, despite any such objection." 27 Section 12 provides:- "12. Declaration as to objection by witness (S.38 ICAC Act) The Commissioner may declare that all or any classes of answers given by a witness or that all or any classes of documents or other things produced by a witness will be regarded as having been given or produced on objection by the witness, and there is accordingly no need for the witness to make an objection in respect of each such answer, document or other thing." 28 In the Parole Board proceedings on 2 July, 1999, the learned Chairperson in considering what use may be made of evidence given over objection (in circumstances where compensatory protections are available), expressed the view that notwithstanding the fact that the Parole Board is constituted under Part 5 of the Sentencing Act, a hearing before the Board could not properly be characterised as a criminal proceeding. In Hartmann -v- Commissioner of Police (1997) 91 A Crim R 141, Cole JA, with whom the other members of the Court agreed, at p 147 said:- "The principle that the ingrained nature of the protection against self incrimination requires a strict construction of provisions said expressly or impliedly to remove that protection also requires that a liberal interpretation be given to the protective provisions in a statute purporting to protect a person from the consequences of the abrogation of the protection against self incrimination. In my judgment it is plain that the combined consequences of ss 6 and 7 of the Royal Commission (Police Service) Act , and s 17(1) of the Royal Commissions Act is to remove the privilege against self incrimination. The compensatory protections are given by ss 9 and 12 of the Royal Commission (Police Service) Act and s 17(2) Royal Commission Act . The words "in any civil or criminal proceedings" in s 17 are not to be narrowly construed but are to be read as expressing the legislature's intention that statements of evidence, or documents, or oral evidence produced to or given to the Police Royal Commission are not available as evidence against the person providing or giving the statement, document or evidence in any future proceedings, howsoever they are categorised. The expression "any civil or criminal proceedings" was intended to encompass the full category of possible future proceedings." 29 In reliance on this authority I am content to find that the compensatory protections which arise under S 37 of the Independent Commission Against Corruption Act and under S 17 of the Royal Commissions Act may be availed of by a person in the position of the plaintiff, provided objection is taken to the evidence being led. 30 The suggested refined issue now for determination by this Court is whether, as a matter of statutory construction, the use of the words "… does not object to giving the answer or producing the document …" in S 37(4)(b), and the cognate words "… was willing to give the answer or produce the documents … " in S 17(3)(b), refers to the position adopted by the person in whose favour the compensatory protection runs:-

(a) at the time of giving evidence or producing the documents before the Commission or Commissions or alternatively

(b) at the time of the later proceedings, when the compensatory protection is invoked (in the present case at the hearings before the Parole Board). 31 The plaintiff contends for alternative construction (a) with the consequence, so the submission runs, that once the objection is taken before either Commission (or both) the compensatory protection extends to prohibit a subsequent tribunal from reliance upon the privileged evidence in a manner adverse to the protected witness (in this case the plaintiff). 32 The significance of the construction contended for by the plaintiff in the present case, so it is submitted, is that no matter for what purpose the privileged evidence may be placed before the subsequent tribunal by the protected witness, no inference adverse to the protected witness may be drawn. 33 It is necessary to consider, in the present case, the purpose for which the evidence given by the plaintiff before the two Commissions was placed before the Parole Board. 34 The transcript of evidence given by the plaintiff before the Police Royal Commission was tendered and marked Exhibit "B". The transcript of evidence given by the plaintiff before ICAC was tendered and marked Exhibit "D". 35 The purpose of the tender was made plain by the submissions of Mr Hovan, who submitted to the Board that the tender of the transcripts of the plaintiff's evidence was to demonstrate:-

(a) that the plaintiff was forthcoming in his evidence about his activities in and around Kings Cross;

(b) that there had and has been a clear removal of the plaintiff from his criminal past; and

(c) that the people with whom he had been involved in the past, police officers and others, were such that having given the evidence before the two Commissions, which was tendered before the Board, he had burnt his bridges and could never resume his past criminal activities. 36 It is apparent from the transcript of what fell from the Board members that they did take into account in a manner adverse to the plaintiff the contents of the transcripts, Exhibits "B" and "D". 37 The clear purpose of S 17 and S 37 of the respective acts is to abrogate the common law right of an individual to decline to answer questions, the answers to which may tend to self-incriminate and to provide compensatory protection to the witness with regard to subsequent or consequential proceedings. 38 The compensatory protection afforded by S 17(2) of the Royal Commissions Act is to render the evidence (being an answer or document or other thing) inadmissible in evidence "against that person in any civil or criminal proceedings", "… except as otherwise provided in this section". 39 The civil or criminal proceedings there referred to cannot be a reference to the Commission - the evidence is admissible before the Commission by force of S 17(1) - they can only relate to proceedings subsequent to the giving of the evidence. 40 The words in subsection (2) of S 17 "… except as otherwise provided in this section", embrace subsection (3)(b) which provides that "Nothing in this section shall be deemed to render inadmissible - (b) - any answer, document or other thing in any civil or criminal proceedings if the witness was willing to give the answer or produce the document or other thing irrespective of the provisions of subsection (1)." 41 In my view, this subsection, on a proper construction, means that in any subsequent civil or criminal proceedings the evidence in question shall not be inadmissible if the witness did not, at the hearing before the Commission raise an objection to giving the evidence, (i.e. gave the evidence willingly without objection, in terms of S 17(3)(b) and in terms of S 37(4)(b) did not object to giving the evidence). 42 It follows that the plaintiff's contention, which is alternative (a) above, is correct, however, the issue cannot rest there. The relief which the plaintiff seeks, calls for a finding that the Board took into account evidence that it was not entitled to take into account. 43 As stated above, the plaintiff, having taken objection to giving the relevant evidence before both Commissions was entitled to claim privilege against self-incrimination and object to the evidence being placed before the Board. Nevertheless, it is of the essence of a privilege that it may be waived by the person who enjoys it; Cross on Evidence 4th Aust Ed 667. Waiver of privilege may be express or implied; it may be deliberate or inadvertent; Great Atlantic Insurance Co -v- Home Insurance Co (1981) 2 All ER 484(CA). 44 The purpose for the tender of Exhibits "B" and "D" before the Parole Board was made plain beyond question. It was the clearest possible waiver of privilege in the course of supporting the plaintiff's claim for release on parole. The submission made by Mr Waterstreet that the evidence tendered may be used by the Board favourably to the plaintiff, but that the Board is prohibited by virtue of privilege from considering the evidence in a light adverse to the plaintiff, does not find favour. The plaintiff cannot approbate and reprobate in this way. 45 It follows that the Parole Board did not take into account matters of evidence that it was not entitled to take into account. 46 Mr Saidi further submits that in the present case, by force of S 17(3), S 17(2) has no application. This argument, as I understand it, proceeds on the basis that whilst S 17(2) affords protection to a witness, S 17(3) contemplates use of the otherwise privileged evidence without objection and that once the evidence is admitted, it is available for all purposes. (Similar considerations, it is submitted, apply, mutatis mutandis to S 37 of the ICAC Act.) This argument is in essence no different from considerations of waiver and for the reasons previously given, in my view, the defendants are entitled to succeed on this basis also. 47 Accordingly, this court declines to make the declaration sought in paragraph 1(a) of the Amended Summons. 48 The order of the Court is that the Amended Summons is dismissed with costs.

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