Commissioner of the Australian Federal Police v Mulder [2013] NSWSC 621 | Case summary

Determination 61Many of the authorities to which reference was made are founded upon other regimes of confiscation and compulsory examination. For example, there is a regime whereby, pursuant to the Criminal Assets Recovery Act, there can be confiscation with regard to state offences. There is a regime pursuant to the New South Wales Crime Commission Act 2012 for compulsory hearings. The New South Wales Crime Commission may also be an applicant with regard to confiscation pursuant to the Criminal Assets Recovery Act. There is also a regime of compulsory examination pursuant to the Australian Crime Commission Act 2002 (Cth), although it does not appear that the Australian Crime Commission may be an applicant for a confiscation order under the Act. Some of the cases to which I was referred deal with compulsory examination at a Royal Commission, or pursuant to the Companies (New South Wales) Code as it stood in 1989. 62Of course, none of those regimes are identical to the regime contained in the Act. Some of the variations are significant. For example, s 25A(9) of the Australian Crime Commission Act is as follows: "(9) An examiner may direct that: (a) any evidence given before the examiner; or (b) the contents of any document, or a description of any thing, produced to the examiner; or (c) any information that might enable a person who has given evidence before the examiner to be identified; or (d) the fact that any person has given or may be about to give evidence at an examination; must not be published, or must not be published except in such manner, and to such persons, as the examiner specifies. The examiner must give such a direction if the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been, or may be, charged with an offence." 63That provision empowers examiners to prohibit dissemination of material derived from an examination to a prosecution service. And yet, in sharp contrast, s 193 of the Act merely restricts publication to "the public". 64I consider that my task is to determine, first, whether the Act, either expressly or by necessary implication, permits an examination hearing in the circumstances under consideration. If it does not, the order sought by the defendant should be made. If it does, I need to consider the second question of whether there is anything in the circumstances of this particular case that would cause me to characterise such a process as an interference with the due administration of justice. If there is, the order sought should be made. 65In determining those questions, my focus will be on the Act and authorities with regard to that particular piece of legislation. However, it is appropriate that I first briefly review in chronological order the decisions to which I was taken with regard to other statutes and other regimes. 66For ease of comprehension, I shall consistently refer to a litigant who is resisting compulsory examination or confiscation as the defendant, without regard to his or her role in any appeal. 67In Hammond v Commonwealth [1982] HCA 42; (1982) 152 CLR 188, it was unanimously held by the High Court that to permit the defendant to be compulsorily examined at a Royal Commission about the subject matter of a pending charge would constitute an "interference with the due administration of justice". That decision, delivered over 30 years ago, represents the high-water mark of judicial support for the propositions of the defendant. Since then, the tide has steadily receded, perhaps as a result of legislation that is more and more specifically drafted. 68In Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486, it was held by the majority of the High Court that it would not be an abuse of process for a director of a company to be compulsorily examined pursuant to the Companies (New South Wales) Code even though he was facing trial with regard to a number of charges to do with his role within the company. Hammond v Commonwealth was distinguished on the basis that it was decided in a markedly different legislative context, and also on the basis that it was decided in circumstances of urgency that did not permit considered regard to other relevant decisions of the High Court. 69In Australian Crime Commission v OK [2010] FCAFC 61; (2010) 185 FCR 258, a majority of the Full Court of the Federal Court of Australia held that it would not be a contempt of court for the defendant to be compulsorily examined pursuant to the Australian Crime Commission Act when he was facing a charge of manufacturing and intending to sell a controlled drug contrary to s 33(3) of the Controlled Substances Act 1984 (SA). Spender J dissented, based upon the principles in Hammond v Commonwealth. Substantial reliance was placed by the majority upon section 25A(9) of the Australian Crime Commission Act, to which I have earlier referred, as providing effective protection from derivative use of any material obtained at the compulsory hearing in the subsequent prosecution. 70In NSWCC v Jason Lee, the Judge at first instance declined to order an examination pursuant to s 31D of the Criminal Assets Recovery Act against defendants facing serious criminal charges. A bench of five sat in the New South Wales Court of Appeal. Basten JA said 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." 71It was held that the Judge at first instance had erred in exercising his discretion pursuant to the section not to order that the examinations take place. 72Special leave to appeal was granted by the High Court of Australia on 15 February 2013: Lee & Anor v New South Wales Crime Commission [2013] HCATrans 27, and the appeal was heard on 1 May 2013. As I have said, in light of the inflexible temporal aspect of this matter to which I have referred, neither party submitted that my decision could or should be adjourned until resolution of the appeal to the High Court of Australia. 73Three decisions have been handed down since I reserved my judgment on 25 February 2013. Of course, the parties were in no position to make submissions about them at that time. Neither party has sought leave to make further submissions in the meantime. Nevertheless, I consider that I should indicate briefly that I have considered them in coming to my decision. 74In SD v New South Wales Crime Commission [2013] NSWCA 48, a defendant at a New South Wales Crime Commission compulsory hearing claimed that, in the absence of an irrevocable order prohibiting dissemination of any answer he may give to New South Wales Police or the DPP, he had a reasonable excuse for refusing to answer a question, pursuant to s 18 of the New South Wales Crime Commission Act. The Court of Appeal did not disturb the rejection by the Judge at first instance of that submission. 75In R v Seller; R v McCarthy [2013] NSWCCA 42, the judge at first instance had permanently stayed a criminal trial after the results of a compulsory hearing had been disseminated to the DPP, contrary to an order pursuant to s 25A(9) of the Australian Crime Commission Act. The Court of Criminal Appeal (comprised of Bathurst CJ, McClellan CJ at CL (as his Honour then was) and Rothman J) quashed the stay, on the basis that there was no prejudice to the defendants in the particular circumstances of the case. 76In Lee, Do Young v R; Lee, Seong Won v R [2013] NSWCCA 68, compulsory hearings had been conducted in the New South Wales Crime Commission while criminal charges were pending against the defendants. At the trial, the prosecutor possessed the fruits of the compulsory hearings. On appeal, the Crown conceded that the material had been provided unlawfully. Basten JA (with whom Hall and Beech-Jones JJ agreed, Hall J delivering a separate judgment) held that, in the circumstances of the case, there had been no miscarriage of justice. 77I turn to authorities regarding the Act itself. Again, I will discuss them chronologically. 78In Commonwealth DPP v Xu [2005] NSWSC 191; (2005) 154 A Crim R 173, Hoeben J (as his Honour then was) dismissed a motion seeking a stay of an order pursuant to s 39 of the Act that a defendant provide a statement of assets and liabilities. The defendant was charged with three offences related to sexual slavery contrary to the Criminal Code Act 1995 (Cth) and one count of detain for advantage contrary to s 86(2)(a) of the Crimes Act 1900. It is noteworthy that, at that stage, section 39A had not been inserted into the Act. Even in the absence of that provision, Hoeben J held at [36]: "By reference to the nature of the Act and the purpose which it is designed to achieve, and by reference to the language and character of sub-s 39(1)(d) and the part it plays in the making of a restraining order, I am of the opinion that the sub-section does impliedly exclude the privilege against self-incrimination." 79In Director of Public Prosecutions (Cth) v Jo, the Queensland Court of Appeal did not interfere with the decision of the trial Judge to stay temporarily a forfeiture order and concomitant examination, in circumstances where criminal charges had not been laid but were certainly possible. The Judge at first instance had determined that to permit the examination to take place, in circumstances in which answers could be given that could be derivatively used in possible criminal proceedings, would constitute an abuse of process. The Queensland Court of Appeal emphasised the inherent power of a court to prevent an abuse of process, including by way of upholding the privilege against self-incrimination where it is in the interests of justice to do so. 80In Lee v Director of Public Prosecutions (Cth) [2009] NSWCA 347; (2009) 75 NSWLR 581, the defendant had not been charged, but there was a significant possibility that that would occur. The Judge at first instance refused to strike out an application for an examination order pursuant to s 180 of the Act. The New South Wales Court of Appeal did not interfere with that determination. It was said that the application was premature, in that a court had not ordered an examination, and an examiner had not issued an examination notice. The Court, which was comprised of Basten and Macfarlan JJA and Sackville AJA, said: "[18] There is, however, a more general principle of construction that denies a statutory intention to modify or abolish fundamental rights or freedoms absent clear and unambiguous language. That principle does not require express reference to the right or freedom which is diminished, but the intention to modify or abolish must arise by necessary implication from the terms of the statute: see generally Kelaita at [13]-[15]. The high store set by the preservation of such basic rights and freedoms is sometimes declared as requiring an intention to the contrary to be expressed with "irresistible clearness": see, eg, Studman v Director of Public Prosecutions (Cth) [2007] NSWCA 285; 177 A Crim R 34 at [35] (McClellan CJ at CL, Spigelman CJ and Handley AJA agreeing). ... [23] The potential for such a consequence [that is, a person being required to answer a question or produce a document that may have an incriminating effect] is expressly recognised by the Proceeds of Crime Act. Thus, Pt 3-1 of the Act dealing with examinations, makes it an offence to fail or refuse to answer a question that the approved examiner requires the person to answer: s 196(1)(b). Similarly, the section makes it an offence to refuse to produce a document specified in the examination notice: s 196(1)(c). That obligation is, however, subject to an exception in circumstances where, under another law, the person "could not, in proceedings before a court, be compelled to answer the question or produce the document": s 197(1). That qualification to the obligation is then removed where "the only reason or reasons why the person could not be so compelled" is, inter alia, that "answering the question or producing the document would tend to incriminate the person or to expose the person to a penalty": s 197(2)(a). ... [25] This legislative scheme recognises in express terms the availability of the right not to incriminate oneself and removes it in respect of answers and documents sought in an examination under the Act. While it provides protection against use of such answers and documents, that protection does not extend to proceedings or an application under the Act itself, whether or not there could have been objection on the grounds of self-incrimination in those proceedings. Finally, the terms of s 198 are carefully formulated so as to render the answers or documents inadmissible in evidence, but not to exclude their use in other ways. This reflects the underlying purposes of the examination, the details of which are not presently relevant. Certain other protections are provided, at the discretion of the examiner, permitting directions preventing or restricting the disclosure of answers or documents to the public (s 193), but otherwise, the scope of the use to which an answer or a document may be put will depend upon the purpose of the examination. ... [77] It is sufficient for present purposes to accept that the reasoning in DPP v Jo is not directly applicable to the present proceedings for the reasons noted above. It is not necessary, therefore, to consider whether the reasoning underlying the decision is "plainly wrong". However, in part it appears to embrace a view of the statutory scheme which is inconsistent with that outlined above and may therefore be doubted." 81In Commissioner of Australian Federal Police v Dickson and Ors [2012] NSWSC 1167, the defendants were facing serious criminal charges. An order had been made pursuant to s 39 that a statement of assets and liabilities be provided. The defendant moved on a notice of motion to have that order revoked or stayed until after any trial was completed. After considering the structure of the Act and reviewing the authorities in detail, Bellew J said at [66]: "In circumstances where the Parliament, in conferring power to make the present orders, has specifically legislated to abrogate the privilege against self incrimination in a particular and relevant respect, I do not accept the submission advanced on behalf of the first and second defendants that any attempt to interfere with the rights of an accused person by seeking to compel that person to give up his or her right of silence will amount to an improper interference in the administration of justice in the criminal proceedings. That submission adopts, in a general sense, the language used in Hammond. Quite apart from the fact that there has been, as I have outlined, subsequent consideration of the decision in Hammond, the present case must be considered in the context of statutory provisions which were not applicable in Hammond, and which: (a) specifically abrogate the privilege against self incrimination in respect of the provision of the statements under s. 39(1)(ca); (b) (b)permit, in certain circumstances, the disclosure of such statements; (c) make it clear that the admissibility in evidence of information obtained as an indirect consequence of such disclosure is not affected; and (d) are part of a statutory scheme which is specifically directed to an important matter of public interest, namely the confiscation of assets acquired from criminal activity." 82In short, there is one decision supportive of the proposition that, in the circumstances under consideration, an examination sought pursuant to the particular Act in question should be stayed. That is a decision of the Queensland Court of Appeal. The New South Wales Court of Appeal has doubted the correctness of that decision. 83I have approached the task of statutory construction in accordance with the principles in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, encapsulated by Emmett J (as his Honour then was) and Jacobsen J in Australian Crime Commission v OK at [102] as follows: "The primary object of the construction of a legislative instrument is to ensure that each relevant provision will be given a meaning and effect that is consistent with the language and purpose of all of the provisions of the instrument. That is to say, each provision must be construed by reference to the language of the instrument viewed as a whole, on the assumption that its provisions are intended to give effect to harmonious goals. A statutory instrument should be construed in such a way as will ensure, as far as possible, that all of its provisions are useful and pertinent, none of its provisions is superfluous, void or insignificant. If there is conflict between the language of different provisions, the conflict is to be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve a result that will give effect to the purpose and language of the provisions, but at the same time maintain the unity or harmony of the instrument as a whole. That will sometimes require a determination of what are the leading provisions and what are subordinate provisions, such that one must give way to another. By determining the hierarchy of the provisions, it will often be possible to give each provision a meaning that best gives effect to its purpose and language, while maintaining the unity and harmony of the scheme of the instrument (see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]-[71])." 84Considering the Act as a whole, including its explicitly expressed purposes, its various provisions, and its overall structure, I consider that Parliament has expressed a clear intention that the privilege against self-incrimination is abrogated with regard to examination hearings. And I consider that that abrogation includes circumstances such as these, in which criminal proceedings are pending, the subject matter of which is closely related if not identical to the subject matter of the examination. 85The fact is that, as I have shown, the Act deals with the privilege against self-incrimination at examination hearings and abrogates it: see ss 196(1) and 197(2)(a); provides direct use immunity with regard to things said and produced at such examinations: see s 198; explicitly adverts to derivative use immunity and declines to provide it: see s 266A(7); adverts to the pendency of criminal proceedings and indicates that that cannot prevent an examination notice or hearing: see ss 183(3) and 186(4); permits dissemination of the results of such an examination to a prosecuting authority: see s 266A(2); and, finally, states that criminal proceedings cannot found a stay of proceedings under the Act: see s 319. 86In short, it seems to me that Parliament has turned its mind to the very situation that arises here, and expressly provided that it is not to give rise to the relief sought by the defendant 87I do not consider that the decision of the Queensland Court of Appeal in Director of Public Prosecutions (Cth) v Jo is determinative with regard to my decision. A number of points of distinction can be seen. First, in Director of Public Prosecutions (Cth) v Jo what was sought was a temporary stay of the examination. Here, what is sought is effectively a permanent stay of the examination. Secondly, in Director of Public Prosecutions (Cth) v Jo, a charge or charges had not been laid, and therefore there was marked uncertainty with regard to the position of the defendant. That is not the case here. Thirdly, the primary Judge found that there are was an abuse of process against which there needed to be protection. I do not make that finding here. 88Furthermore, it is noteworthy that, as I have said, the decision in Director of Public Prosecutions (Cth) v Jo has been doubted by the New South Wales Court of Appeal. 89The decisions of Hoeben J in Commonwealth DPP v Xu and Bellew J in Commissioner of Australian Federal Police v Dickson are not strictly binding upon me. However, I consider that those considered decisions with regard to an analogous section of the Act are powerfully persuasive. 90As I have said, NSWCC v Jason Lee pertains to different legislation. Having said that, each party before me submitted that the decision is highly significant. Indeed, in the case of counsel for the Commissioner, he submitted that it was virtually determinative. Accepting the submissions that the decision is significant, I consider that nothing in the judgments assists the submission of the defendant. Nor does anything said by Beazley JA have that effect, in the circumstances of this case. After all, I would have thought that the criminal prosecution will almost certainly be conducted in the Local Court, and would take, at most, two days. 91It follows that I consider that the legislation explicitly permits an examination hearing in the circumstances under consideration. 92Turning to the secondary question, there is no evidence that the examination has been sought for the improper purpose of proving the offence, as opposed to resisting the exclusion order sought by the defendant. Nor is there evidence that the examination will include questions designed to prove that the defendant is guilty of the offence with which he is charged, as opposed to resisting the exclusion order. Nor is there evidence that the answers to any such questions will automatically be provided to the DPP. Nor is there any question of unlawful or even inappropriate dissemination of answers given at the examination. Nor can it be shown that any material provided to the DPP will be the subject of direct use, or some kind of inappropriate derivative use, in the criminal prosecution. Of course, if any impropriety is able to be established by the defendant in the future, then this judgment should not be taken as a fetter on any appropriate relief, including but not limited to exclusion of evidence pursuant to s 138 of the Evidence Act 1995. 93To the extent that there remains a basis on which it could be said that complying with the clearly expressed will of Parliament can nevertheless constitute an interference with the administration of justice sufficient to invoke the inherent jurisdiction of this Court, there is nothing on the facts of this case that would lead me to consider that such an interference will occur if the examination hearing were to precede the criminal prosecution. 94Nor do I consider that the fact that the AFP is the applicant for the examination order as well as the investigating body regarding the pending criminal charges is determinative. 95In short, I consider that order 2 should be dismissed with costs.

Commissioner of the Australian Federal Police v Mulder

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