The Kieve Affidavit
103 During the course of the proceedings before Bell J, the Claimant sought to tender a further affidavit from its expert on American law, Mr Loren Kieve. Her Honour rejected the tender on discretionary grounds. The reluctance of an appellate Court to intervene with respect to decisions on admissibility of evidence in the exercise of a discretion is well established. (See e.g. Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 176-177). In my opinion, this determines the outcome of this aspect of the application. In this respect also leave to appeal should be refused.
104 Her Honour conducted a balancing exercise in which she weighed the desirability of Mr Cannar having the opportunity to lead all evidence which he believed to be relevant in support of his application for the vacation or amendment of the initial orders made by James J, against the prejudice that the Opponent would suffer if additional expert evidence was admitted at that stage of the proceedings with a consequential adjournment.
105 The issue arises under s34 of the Act which provides:
"34(1) A person must not be compelled by virtue of an order under section 33 to give any evidence which the person could not be compelled to give:
(a) in similar proceedings in the State, or
(b) in similar proceedings in the place in which the requesting court exercises jurisdiction.
(2) Subsection (1)(b) does not apply unless the claim of the person in question to be exempt from giving evidence is either:
(a) supported by a statement contained in the request (whether it is so supported unconditionally or subject to conditions that are fulfilled), or
(b) conceded by the applicant for the order.
(3) If such a claim by any person is not so supported or conceded, the person may (subject to the other provisions of this section) be required to give the evidence to which the claim relates, but that evidence is not to be transmitted to the requesting court if that court, on the matter being referred to it, upholds the claim.
(4) In this section, references to giving evidence include references to answering any question and to producing any document, and the reference in subsection (3) to the transmission of evidence given by a person is to be construed accordingly."
106 The proceedings before Bell J were conducted on 4, 5, 6 and 10 June 2003. On 30 May 2003, Judge Kessler in the United States District Court granted a use immunity with respect to the evidence of Mr Cannar pursuant to the provisions of 18 United States Code s6002. Her Honour found that the immunity had been served on the Claimant's solicitors on the morning of Monday 2 June 2003. This was two days before the hearing. However, the prospect that such an immunity could be granted was known of for some time.
107 The argument which the Applicant sought to advance before Bell J, on the basis of the contents of the affidavit of Mr Kieve, concerned the possibility of oppression arising from the fact that the use immunity order had in fact been granted. This arose, it was said, because of the limited effect of a use immunity order granted by the United States District Court for the District of Columbia.
108 The evidence of Mr Kieve was directed to establishing that this use immunity has no effect outside the District of Columbia. It was submitted that absent a use immunity order a claimant would be able, by virtue of s34(1)(b), to assert the privilege against self-incrimination under the Fifth Amendment in the United States Constitution. It was submitted to Bell J, and to this Court, that because of the use immunity order granted by the United States District Court for the District of Columbia, Mr Cannar could no longer assert a privilege under s34(1)(b), notwithstanding the fact that the immunity had no effect outside the District of Columbia. It was submitted that he had lost the right recognised by s34(1)(b) of having a United States court, namely an additional and different forum, determine his claim for privilege.
109 Part 58 of the Supreme Court Rules makes provision for the taking of evidence under the Act. Part 58 r 2 invokes the provisions made in Pt 27 with respect to the taking of evidence otherwise than at the trial with respect to an examination under the Act. The effect of Pt 27 r 7 is that an objection on the grounds of self-incrimination under s34(1)(b), invoking the law with respect to that subject applicable in the jurisdiction of the requesting court, is to be determined by the requesting court. The person who takes the evidence in New South Wales pursuant to the order of this court will state to the parties an opinion, but is not to decide the validity of the objection. The ground for the objection, the opinion of the examiner and the answer are to be set out in the written record or transcript so that the requesting court may decide the validity of the objection. Under s34(3) the evidence would not be transmitted if the foreign court upholds the objection.
110 Pursuant to s34(1)(b) of the Act, the examiner will need to determine whether a privilege against self-incrimination arose pursuant to the law applicable in New South Wales. That is, of course, the law with which the examiner will be familiar. The practical utility of referring matters on such difficult questions as the privilege against self-incrimination arising under the law of a foreign nation to a court of that foreign nation, rather than deciding such a question of foreign law on the basis of expert evidence, is plain.
111 Her Honour rejected the tender of the evidence in a separate judgment of 8 October 2003. Specifically, her Honour rejected the submission that, as the immunity had only been notified to the Claimant two days before the hearing, he should not be deprived of an opportunity to lead additional evidence about the implications of the grant of immunity. She said:
"[16] I did not consider it apt to characterise the grant of the immunity as an unexpected eventuality that took the applicant by surprise. The immunity granted was of the same description as that which was recommended by the respondent in her letter of 22 April 2003 and as discussed by Mr Kieve in the report annexed to his affidavit sworn on 27 March 2003."
112 Her Honour had earlier noted that the first report of Mr Kieve had not raised any issue about the effectiveness of an immunity granted pursuant to 18 USC s6002 (at [10]). She also referred at [11] to the letter of 22 April, written on behalf of the Opponent, to the effect that at that date she had already recommended to the Assistant Attorney-General that Mr Cannar be granted use and derivative use immunity under the section.
113 Her Honour referred to an application to vacate the date then fixed for the hearing of the motion before her Honour which had been made on behalf of the Claimant and opposed by the Opponent. During the course of that application counsel for the Opponent said in support of the motion to vacate the date, which was eventually granted by her Honour, that:
"We want to have an appropriate amount of time to get proper advice in the United States as to what would be the effect of the immunity. Does it for example, cover State offences or does it only cover Federal offences … Whether or not the immunity is ultimately offered in more concrete form and the advice we get about its effect and what use testimony given under the immunity could have in other proceedings in the United States, that may affect whether we proceed with our substantive application at all. It may mean that instead of seeking to set the examination order aside, we may seek extra procedural safeguards, for example, about the use of his testimony rather than seeking to get the whole thing set aside. We just don't know. … If he is offered an immunity which is effected in the United States, he will then have to consider well, bearing in mind there may or may not be exposure in Australia and the United Kingdom, does he take that immunity and give evidence or does he continue to resist this application. But part of that to factor in is to get advice on effect of the immunity at least in the United States in the first place."
114 In rejecting the tender of the evidence her Honour expressly relied on this sequence of events when she said:
"[17] The applicant sought to vacate the date fixed for the earlier hearing in part in order to assess the effect of an immunity granted under 18 USC s 6002. To the extent that his case on oppression related to the risk of prosecution for offences in the United States arising out of evidence given by him at an examination in New South Wales pursuant to an order made under the Act it was hardly to be advanced by him sitting on his hands and neither taking up the offered immunity nor taking steps to place before this court evidence tending to establish that such an immunity would not afford him protection.
[18] My view that the issue of the effectiveness of an immunity granted under 18 USC s 6002 did not take the applicant by surprise was not determinative. It was necessary to balance the desirability of the applicant having the opportunity to lead all relevant evidence in support of his application against the prejudice, if any, to the respondent should additional expert evidence be allowed in at this relatively late stage in the hearing."
115 Her Honour went on to note that the Opponent (the Respondent to which she referred in her judgment) would wish to challenge the opinions of Mr Kieve and that its qualified experts would not be available to give evidence in the short term. Accordingly, an adjournment would be necessary.
116 Furthermore, her Honour referred to a submission on behalf of the Opponent to the effect that the scope of the protection in terms of the claim to privilege with respect to answers under s34(1)(a) of the Act was "as great as" that provided under s34(1)(b). Her Honour noted:
"[28] Mr Gageler did not submit that the right conferred by
s 34(1)(b) is in any respect broader in scope than that conferred by
s 34(1)(a). He acknowledged that it would be open to the applicant to object to giving evidence at any examination conducted under the Act on the ground that the evidence may tend to prove that he has committed an offence against or arising under any law of the United States; s 34(1)(a) and s 128 of the Evidence Act 1995 (NSW).
[29] The way Mr Gageler put the matter was that, absent the immunity, the applicant would have been entitled to object to answering a question that may tend to prove that he had committed an offence against or arising under a law of the United States pursuant to s34(1)(a) and s34(1)(b).
[30] I did not consider that the exercise of my discretion favoured allowing the applicant to rely on the further report having regard to the concession that I have noted at [28] above and my acceptance that the admission of it would as a matter of fairness to the respondent necessitate the adjournment of the proceedings."
117 During the course of argument on this issue before her Honour the concession to which her Honour referred was made in the following terms:
"HER HONOUR: Do you advance a submission that the right conferred by s34(1)(a) not to be compelled to give evidence when taken in conjunction with section 128 of the Evidence Act, extending as it does to offences arising under an Australian law or a law of a foreign country, produces the result that in respect of an answer to a question that might incriminate the applicant as to an offence against the law of the United States, he would not have protection under the s34(1)(a) mechanism.
MR GAGELER: I don't advance such a submission." (Black AB Vol 2, 288U-289E)
118 Earlier, the following exchange had occurred:
"HER HONOUR: You do not positively assert that, in the circumstances of this case, the 34(1)(b) right is a more extensive one than the 34(1)(a) right, but you said there is that risk.
MR GAGELER: That's the way I put it."
119 On appeal, the relevant additional "oppression" was said to occur because the Claimant lost the right under s34(1)(b) and Pt 58 r 2 of the Supreme Court Rules to argue the privilege against self-incrimination in a US court described as "an additional and different forum".
120 Contrary to the submissions made to Bell J, the Claimant wished to contend in this Court that his rights under s34(1)(b) are "significantly different in nature" from those under s34(1)(a). However, no expert evidence about US law was advanced to support this contention. Nor was it otherwise substantiated.
121 Bell J recognised that s128 of the Evidence Act extends the privilege against self incrimination to an objection based on a tendency to prove that the witness committed an offence against, or is liable to a civil penalty under, a law of a foreign country. If there are reasonable grounds for such an objection, the evidence cannot be compelled from the witness.
122 Her Honour took into account, as she was entitled to take into account, on the submissions before her, that the privilege against self-incrimination available under Australian law pursuant to s34(1)(a) did not substantially differ in the scope of its protection from that which may be available under US law pursuant to s34(1)(b). No reason to take a different view has been put forward in this Court. An assertion that there is or might be a relevant difference is not enough. Her Honour committed no error of principle in this respect.
123 In the context of the opportunity that the Claimant had to prepare for the grant of the immunity, her Honour was entitled to take into account the disadvantage to the Opponent from the adjournment that would necessarily flow from the admission of late evidence.
124 The Claimant submitted that Bell J committed two errors of principle. First, that her Honour erred in holding the argument based on the further evidence lacked merit. I can detect no such finding. Secondly, it was put that her Honour erred in giving weight to the fact that the Opponent would be prejudiced by its admission. Her Honour was, in my opinion, entitled to do so on the basis that an adjournment would be necessary.
125 There is no error of principle in her Honour's reasoning. Her Honour was entitled to conclude that rejecting the evidence would not operate as an injustice to the Claimant. Leave to appeal on Ground 4 should be refused.
126 I am reinforced in this conclusion by two other considerations, in the alternative.
127 First, as the Opponent submitted, in this respect, as for the general issue of discretion, there was no evidence that the alleged fear of exposure to a criminal sanction was a real danger, rather than being remote or, indeed, speculative.
128 Secondly, I can see no material difference for the Claimant's position under s34(1)(b) arising from the immunity. Assuming that Mr Kieve is correct, and the immunity given by the US District Court is not determinative in other jurisdictions in the United States, I do not see that her Honour would have come to a different conclusion on the substantive application, even if the evidence had been admitted.
129 The issue that arises under s34(1)(b) concerns the law applicable in the jurisdiction of the requesting court. By s34(3) and Pt 58 r 2, that issue will be determined by that court. The effect, if any, of disclosure in jurisdictions other than that of the requesting court does not arise under s34(1)(b). It made, and makes, no difference to the test under s34(1)(b) that self-incrimination in some jurisdictions other than that of the requesting court was a risk, unless and insofar as that was to be taken into account by the law applicable in the jurisdiction of the requesting court.
130 Furthermore, the US District Court could have granted immunity at any time before it determined to "uphold" the privilege claim, as s34(3) envisages. It makes no difference that it did so before or after this Court gave effect to an order under s33 of the Act.
131 In my opinion, even if the evidence had been admitted, it would have made no difference.