Consideration of the authorities
43As previously noted, reliance was placed by counsel for the first and second defendants on the decision of the High Court in Hammond v Commonwealth of Australia. That decision was referred to in a subsequent judgment of the High Court in Hamilton v Oades (1989) 166 CLR 486, a judgment to which I was not referred in the course of argument. In that case, the respondent had been charged with various offences arising out of his dealings with a particular company and an order was made pursuant to s. 541 of the Companies (NSW) Code requiring him to attend for examination by a Registrar of the Supreme Court of NSW. Section 541 provided (inter alia) that a person was not excused from answering a question put to him at such examination on the ground that the answer might tend to incriminate him. However, the section further provided that where privilege was claimed before answering the question, the answer would not be admissible in any criminal proceedings brought against the examinee, other than in respect of the falsity of the answer. Mason CJ relevantly observed (at 494):
"It is plain that an examination under s. 541 while charges are pending may expose the witness to the risks mentioned. To the extent only that under the section rights of an accused person are denied and protections removed, an examination may even amount to an interference with the administration of criminal justice. But is well established that Parliament is able to "interfere" with established common law protections, including the right to refuse to answer questions, the answers to which may tend to incriminate the person asked".
44His Honour went on to observe (at 496):
"Of course the section gives no protection to the witness against the use in criminal proceedings of derivative evidence, i.e., evidence which is obtained from other sources in consequence of answers given by the witness in his examination. It would be difficult for Parliament to provide for specific protection against derivative use of such answers given by a witness. Immunity from derivative use tends to be ineffectve by reason of the problem of proving that other evidence is derivative. But in any case, by enacting s 541 without providing such specific protection, Parliament has made its legislative judgment and such action is not required and has limited specific protection to the possible consequences of direct use in evidence of the answers of the witness, thereby guarding against the possibility that the witness will convict himself out of his own mouth - the principal matter to which the privilege is directed. Thus the legislative resolution of the competition between public and private interest is to provide for a compulsory examination and to give specific protection in relation to the principal matter covered by the privilege but not otherwise, except in so far as a judge, in the exercise of a wide statutory discretion, may see fit in the particular circumstances of a case to give directions as to the matters to be inquired into."
45His Honour also referred to the judgment of Windeyer J in Rees v Kratzmann (1965) 114 CLR 63 at 80:
"The honest conduct of the affairs of companies is a matter of great public concern today. If the legislature thinks that in this field the public interest overcomes some of the common law's traditional consideration for the individual, then effect must be given to the statute which embodies this policy".
46In Hamilton v Oades Dawson J, having referred to both Rees v Kratzmann and Mortimer v Brown and Beames (1970) 122 CLR 493, made specific reference to the passage in Hammond to which I was taken in the course of argument (at [28] above) and observed (at 509):
"But that passage is preceded by the observation that the urgency of the matter then before the Court required an immediate decision and that cases such as Rees v Kratzmann, Mortimer v Brown and Mitcham v O'Toole were not discussed. Moreover, the legislation in question in Hammond v The Commonwealth was of a different kind, being concerned in general terms with executive inquiry by means of a Royal Commission or Board of Enquiry without reference to subject-matter or purpose. And the privilege against self incrimination is not under our system of law inviolable, however clearly the legislature will need to express itself before the courts will discern an intention to abrogate or even weaken such an ingrained principle of the common law. In the case of s. 541, as I have pointed out, the legislature could hardly have expressed itself more clearly".
47In New South Wales Crime Commission v Hung Sun Choi [2012] NSWSC 658 (a decision handed down only a matter of days before I heard argument in the present matter) McCallum J considered an application, pursuant to the provisions of s. 31D of the NSW Act, for an order that the defendant be examined and that he provide a verified statement of property. Her Honour declined to follow the primary Judge in Lee and, having considered the decisions in Hamilton v Oades, Rees v Kratzmann and Mortimer v Brown and Beames observed (at [47]):
"In Mortimer the High Court held that an examinee under s. 250 of the Companies Act may not decline to answer a question on the ground that the answer may tend to incriminate him. The judgments in that case give sober recognition to the obligation of the court to construe a statute so as to give effect to the clear intention of the legislature and without sentimental regard for any incursion upon centuries of closely guarded notions of criminal justice".
48Her Honour also observed (at [51] - [53]):
"The Criminal Assets Recovery Act is replete with unambiguous indications that Parliament intended the Commission to be able to pursue confiscation orders notwithstanding the existence of pending criminal proceedings and with the aid of powers that would infringe upon a defendant's right to remain silent.
[52] As already noted, the objects of the Act expressly contemplate the pursuit of confiscation orders without requiring a conviction. Section 13A (set out above) clearly contemplates the conduct of an examination in circumstances in which self-incrimination may occur. There is no need to draw any inference as to Parliament's intention in that respect, as the High Court was prepared to do in Mortimer. The Act expressly abrogates the privilege and provides compensatory protection against direct use of the answers given. Whether to extend that protection to derivative use was a matter for Parliament, which it also addressed (s 13A(3)). Examination orders under s 31D are governed by those provisions (s 31D(3)) and so must also be taken to have been intended to be available in the face of pending criminal proceedings. It is also significant that the existence of criminal proceedings is not a ground on which this Court may stay proceedings under the Act: s 62.
[53] The risk of interference with the administration of justice must be assessed in that statutory context."
49Her Honour went on to observe (at [54] - [55]):
"However, as was acknowledged by the High Court in Hamilton v Oades, the legislature can authorise the compulsory interrogation of a person facing a criminal charge about matters relevant to that charge. As unpalatable as it may be to a common lawyer, the right to resist such interrogation invoking the privilege against self-incrimination is precisely what Parliament has abrogated by the legislation. It is the duty of the court to give effect to such legislation, which informs the assessment as to what the interests of the administration of justice demand.
[55] That is not to say that the court must always accede to an application by the Commission for ancillary relief. The making of orders under s 31D is discretionary, but the discretion must be exercised having regard to the objects of the Act".
50Her Honour concluded (at [57]):
"I have concluded, however, that it would not be appropriate to refuse to make the orders sought only on the basis that the examination would compel the defendant to answer questions relevant to the criminal proceedings against him. To do so would frustrate the clear purpose of the legislation."
51The proceedings in Lee similarly involved an application pursuant to s. 31D of the NSW Act for an order that the respondents be examined. Basten JA (at [24]) identified the principle that under the general law, a court will grant an injunction to restrain an inquiry undertaken in the exercise of executive power if it carries with it a real risk that the conduct of the inquiry will interfere with the administration of justice in criminal proceedings. He observed that such interference would constitute contempt of court and, accordingly, an injunction may lie to prevent a threatened contempt. His Honour went on to observe (at [34]):
"Once it is accepted that the legislature may authorise a scheme of investigation and inquiry which has the potential to diminish common law protections for an accused in criminal proceedings, the question becomes one of of statutory construction: does the relevant legislation authorise such conduct and, if so, to what extent? Some assistance may be obtained in answering such questions from answers given in relation to other legislation having similar provisions, purposes or effects; however, the focus of the analysis must be the particular legislation in question ..."
52His Honour then proceeded to consider the provisions of s. 13A of the NSW Act, which applied to any examination so ordered, and which provided that:
(i) a person being examined was not excused from answering any question or producing any document on the ground that the answer or production might incriminate, or tend to incriminate, the person;
(ii) any answer given, or document produced, was not admissible in criminal proceedings, other than proceedings for an offence under the NSW Act or regulations; and
(iii) further information obtained as a result of answer being given or the production of a document was not inadmissible in criminal proceedings, on (inter alia) the ground that the answer given or document produced might tend to incriminate the person.
53Having set out the provisions in full, his Honour observed (at [43] and [44]):
"Three aspects of this provision are significant. First, it expressly removes the operation of the general law principle that a person cannot be compelled to answer a question on the ground that the answer might incriminate, or tend to incriminate, the person. Secondly, it provides what is commonly described as 'use immunity' for the answer, so long as objection was taken at the time of answering on the ground of self-incrimination. Thirdly, there is an express rejection of what is commonly described as derivative use immunity. The legislature evidently gave consideration to the consequences of removing the immunity from self-incrimination. There was no attempt to condition the removal of the immunity upon the existence or otherwise of outstanding criminal charges. No doubt that was because the confiscation of assets did not depend on a criminal conviction and, even if charges have not been laid, they might be laid in the future. The possibility, at least, of criminal charges was recognised by the conferral of use immunity in sub-s(2).
[44] In respect of the third point, what is significant is not merely the rejection of such an immunity, but the fact that it was expressly addressed. The legislature evidently appreciated that answers given under compulsion might "set in train a process which may lead to incrimination or may lead to the discovery of real evidence of an incriminating character": Rank Film Distributors Ltd v Video Information Centre [1982] AC 380 at 443 (Lord Wilberforce). The decision not to preclude the use of such information may have followed the reasoning of Mason CJ in Hamilton v Oades at 496 ..."
54His Honour then concluded (at [49]):
"The appropriate conclusion is that the statutory purposes revealed by the Criminal Assets Recovery Act were intended to be available and proceedings to give effect to them were intended to be maintained despite the possibility of adverse consequences for criminal proceedings otherwise on foot".
55In the same case Meaghar JA (at [94]) said:
"Where the Parliament, in furtherance of a particular public interest, has abrogated the privilege against self-incrimination, effect must be given to the statutory provisions which do so: Rees v Kratzmann [1965] HCA 49; 114 CLR 63 at 80; Mortimer v Brown [1970] HCA 4; 122 CLR 493 at 495, 499; Hamilton v Oades at 494-495, 507".
56His Honour went on to say (at [99]):
"The position under the Act is in many respects similar to the legislative regime considered in Hamilton v Oades. Section 13A gives no specific protection to the examinee against the use in criminal proceedings of further information obtained as a result of answers given or documents produced. However, by not providing specific protection against that use (and by providing expressly that such information is "not inadmissible"), the Parliament has made its legislative judgment that specific protection against the risk of that use is not required."
57Finally his Honour observed (at [101]):
"The exercise of the discretion arises in a context where the Act provides for an examination to take place notwithstanding that there remain risks of adverse consequences in relation to criminal proceedings which have been commenced but not completed".