Giannarelli v The Queen

High Court of Australia|1983-03-10|Before: Deane JJ

High Court of Australia Gibbs C.J. Murphy, Wilson, Brennan and Deane JJ. Giannarelli v The Queen [1983] HCA 41

ORDER In each case:Time within which to make application for special leave to appeal enlarged.Application for special leave to appeal granted. Appeal allowed. Order of the Victorian Court of Criminal Appeal set aside and in lieu thereof grant the application for leave to appeal, allow the appeal and quash the conviction and sentence.

Each of the two applicants was on 10 March 1983 convicted in the Supreme Court of Victoria on a charge of perjury. The particulars of each charge revealed that it was alleged that on 20 October 1981 each applicant gave false evidence when a witness before a Royal Commission being conducted by Mr. F. X. Costigan Q.C., pursuant to a Commission issued by the Governor of Victoria by and with the authority of the Executive Council of that State. By s. 141 of the Evidence Act 1958 Vict., as amended, it is provided that any person who, inter alia, upon any oath which is mentioned or referred to in any provision of that Act (which includes an oath administered by a commissioner acting under a commission of inquiry issued by the Governor in Council: ss. 17 and 18) wilfully and corruptly makes any false statement whether oral or in writing shall be deemed to be guilty of wilful and corrupt perjury. The consequence is that a person who knowingly makes false statements on oath before a Royal Commission established under the law of Victoria is liable to be convicted of the offence of perjury under s. 314 of the Crimes Act 1958 Vict., as amended. The evidence at the trial showed that on 20 October 1981 each applicant, when examined by counsel assisting the commissioner, made certain statements on oath, which, on 29 October 1981, when recalled to give further evidence before the commissioner, he admitted to be false. There was strong independent evidence of the falsity of the statements. Each applicant was sentenced to a term of imprisonment. An application to the Court of Criminal Appeal of Victoria for leave to appeal against conviction and sentence was dismissed on 19 April 1983. The present applications, instituted by notice of motion dated 24 June 1983, are for an extension of time and for special leave to appeal from the judgment of the Court of Criminal Appeal of Victoria.

Letters patent in similar terms appointing Mr. Costigan to be a commissioner to inquire into and report on certain related matters had been issued by the Governor-General of the Commonwealth ("the Commonwealth letters patent") and by the Governor of Victoria ("the Victorian letters patent") and each of the letters patent authorized Mr. Costigan to conduct his inquiry thereunder in combination with his inquiry under the other letters patent. It does not appear that Mr. Costigan, in conducting his inquiry on 20 and 29 October 1981, was acting, or purporting to act, under one commission rather than under the other, or that the evidence then given was, or was intended to be, elicited for the purposes of one inquiry, rather than for the purposes of the other. The proper conclusion is that he was conducting an inquiry under both letters patent at the same time. There is no doubt that Mr. Costigan was entitled to conduct his inquiries under the two letters patent in combination in this way: see Reg. v. Winneke; Ex parte Gallagher [1] .

The argument which was advanced before the Court of Criminal Appeal was that it had not been established that Mr. Costigan was, on 20 October 1981, conducting an inquiry under the Victorian letters patent, or in other words that the Crown had not excluded the possibility that the questions to which the untruthful answers were given were asked pursuant to or as part of the inquiry which the Royal Commissioner had been commissioned by the Governor-General to undertake and not pursuant to or as part of the inquiry under the Victorian letters patent. The significance of this argument lay in the fact that on a prosecution under s. 314 of the Crimes Act 1958 Vict. the materiality of the false evidence need not be proved (see s. 315), whereas a charge of giving false or misleading evidence before a Commonwealth Royal Commission lies only if the evidence was with respect to a matter material to the inquiry being made by the Commission: see s. 6H of the Royal Commissions Act 1902 Cth, as amended. The Court of Criminal Appeal rightly rejected that argument. As Young C.J. said, it was enough that the Commissioner appointed by the Victorian letters patent was sitting in Victoria and conducting an inquiry pursuant to those letters patent; what else the Commissioner was doing contemporaneously was irrelevant. The decision in Reg. v. Winneke; Ex parte Gallagher supports that conclusion.

However, in support of the present application there has been advanced a new argument which was not raised in the Court of Criminal Appeal. At the trial there were admitted in evidence, as part of the case for the prosecution, and without objection, transcripts of the evidence given by each of the applicants before Mr. Costigan on 20 and 29 October respectively. The submission now advanced on behalf of the applicants is that those transcripts are evidence of "a statement or disclosure made by any witness in the course of giving evidence before a Commission" within the meaning of those words in s. 6DD of the Royal Commissions Act 1902, and are accordingly inadmissible. Section 6DD, in its present form, reads as follows:

In order to decide upon the effect of s. 6DD in the present case it is necessary to consider two questions, the first of which is whether the admissibility of evidence of the statements or disclosures mentioned in the section is governed by the section in its present form, or by the section in the form in which it was in force at the date when the statements or disclosures were made. The section in its present form was substituted for an earlier section by s. 202 of the Statute Law (Miscellaneous Amendments) Act (No. 1) 1982, and took effect on 4 June 1982: see s. 2(12). The section as in force in October 1981 read as follows:

A statement or disclosure made by any witness in answer to any question put to him by a Royal Commission or any of the Commissioners shall not (except in proceedings for an offence against this Act) be admissible in evidence against him in any civil or criminal proceedings in any Commonwealth or State Court or any Court of any Territory of the Commonwealth. The difference between the present and the repealed provisions is that in its earlier form s. 6DD referred only to a statement or disclosure made in answer to a question put by a Royal Commission or any of the commissioners, whereas the present section refers to a statement or disclosure made in the course of giving evidence before a commission. It is clear enough that the section in its earlier form would not have applied to statements made in answer to questions put by counsel representing the witness himself or some other person appearing before the commission, and it is doubtful whether it would have applied when the question was put by counsel assisting the commission. In the present case the statements made by the applicants on 20 and 29 October were in answer to questions put by counsel assisting the commission. However, in my opinion, s. 6DD in its present form applies to govern the admissibility of evidence at any proceeding held after its enactment, even though the statement or disclosure in question was made before the section in its present form took effect. The section speaks as at the time when the admissibility of the statement or disclosure falls to be decided. It does not affect any vested right or privilege, for it cannot sensibly be said that a party who subsequently seeks to tender the statement had, when the statement was made, a right to put it in evidence, and of course the section does not interfere with any pre-existing privilege to withhold the statement from evidence.

The second, and more important, question that arises is whether the statements made by the applicants on 20 and 29 October were made in the course of giving evidence "before a Commission" within the meaning of s. 6DD. As I have already said, on the dates in question Mr. Costigan was conducting his inquiry pursuant to an authority which he derived from two sources - the Victorian letters patent and the Commonwealth letters patent. He would correctly have been described as either a Commonwealth or a State commissioner; he was acting in both capacities. The decision of the Court of Criminal Appeal in the present case that Mr. Costigan was conducting an inquiry pursuant to the Victorian letters patent (which I have held to be correct) entails as its corollary that he was at the same time conducting an inquiry pursuant to the Commonwealth letters patent. The question is concluded by Reg. v. Winneke; Ex parte Gallagher [2] where it was accepted that when inquiries made under Commonwealth authority and under State authority are held together a refusal to answer a question may amount to an offence against both Commonwealth and State law, although, as was pointed out, the witness would not be exposed to a double penalty [3] .

(1982) 152 C.L.R. 211. 2. (1982) 152 C.L.R., at pp. 219-220, 224, 234-235.

Mr. Griffith for the Crown however sought to derive assistance from the decision in Reg. v. Winneke; Ex parte Gallagher, which he submitted supports the conclusion that the provisions of s. 6DD are not intended to affect the duties and obligations of witnesses, in so far as they give evidence before a Victorian commission, even if the commissioner is concurrently acting under the authority of a Commonwealth commission. In such a case, he submitted, State law continues to regulate the consequences of the giving of false evidence, in so far as the evidence was received for the purposes of the State commission. The State law which governs the matter, according to this submission, is s. 30 of the Evidence Act 1958 Vict. which, so far as is material, provides:

No statement made by any person in answer to any question before any board or commission empowered under the provisions of this Act to summon witnesses shall (except in case of a charge against such person for perjury committed by him in making such statement) be admissible in evidence in any proceedings civil or criminal against him It is true that Reg. v. Winneke; Ex parte Gallagher lends support to the view that the Royal Commissions Act 1902 is not intended to make exhaustive provision in relation to the position of witnesses at and evidence given before a commission, when the commission has the dual character of a State and a Commonwealth commission. However, s. 6DD leaves no room for the operation of any State law regulating the admissibility of evidence given before a Commonwealth commission. Any statement or disclosure made by a witness in the course of giving such evidence is rendered inadmissible, except in proceedings for an offence against the Royal Commissions Act 1902, and it is expressly provided that the prohibition of the admission of the evidence extends to any criminal proceedings in the court of a State. The fact that a combined inquiry was being held when the evidence was given, so that the evidence was given before a State commission as well as before a Commonwealth commission, does not mean that the clear words of the section are to be disregarded. Section 6DD applies in such a case: its operation is attracted if the evidence was given before a Commonwealth commission, whether or not it was also given before a State commission. Of course, if Mr. Costigan had conducted separately his inquiries under the two commissions, s. 30 of the Evidence Act 1958 Vict. would have applied to statements made by a witness in the course of evidence given before him when he was acting solely in his capacity as a Victorian commissioner, but that was not the case here. For the reasons I have expressed, the evidence given by the applicants on 20 and 29 October 1981 was given before a Commonwealth commission, and s. 6DD applied to render inadmissible any statement or disclosure made by the applicants in the course of giving that evidence, subject to an exception which is of no relevance in the present case.

It seems likely that the draftsman failed to advert to the possible operation of s. 6DD in its application to evidence given before a commissioner acting in a dual capacity, but whether or not that is the case the scope of the exception which the section allows is unmistakably confined to proceedings for an offence against the Royal Commissions Act 1902.

It follows not only that the evidence of the transcripts of the proceedings before Mr. Costigan on 20 and 29 October were inadmissible, but that no other evidence of the statements made by the applicants in the course of giving evidence before Mr. Costigan on those days would be admissible on their prosecution on a charge of perjury under Victorian law. In other words, the present case is not merely one in which a conviction was affected by inadmissible evidence - it is a case in which the charge of perjury could never have been proved, because no evidence to prove the making of the perjured statements is at law admissible.

It is of course only in an exceptional case that this Court will give special leave to appeal from a decision of a Court of Criminal Appeal affirming a conviction when the point that the applicant seeks to raise in attacking the conviction was not taken either at the trial or in the Court of Criminal Appeal. However, the present case is exceptional, in that under the law the charge laid could never be proved.

In the circumstances I consider that the case is one in which the Court should extend time and grant special leave to appeal, and that the appeal should be allowed and the convictions and sentences quashed.

The Federal Parliament can immunize persons who give information to courts exercising federal jurisdiction or to other tribunals or bodies exercising federal authority. Thus it can immunize persons from prosecution (under State as well as federal law) for any offence in respect of which the information is evidence or could lead to evidence on which a prosecution could be based. As a lesser measure, it can make the information inadmissible in evidence in any such prosecution (State or federal). No doubt if it were reasonably necessary for the effective operation of federal policy, the Parliament could apply the same immunities to prosecutions against persons (other than those giving the information) and in civil proceedings.

The Parliament, pursuant to undoubted power, has in the Royal Commissions Act 1902, s. 6DD, made inadmissible any statement or disclosure by a witness in the course of giving evidence before a Royal Commission under the Act. Section 6DD states:

On 20 and 29 October the applicants made statements to the Royal Commissions conducted by Mr. F. X. Costigan Q.C., pursuant to letters patent issued by the Governor-General of the Commonwealth of Australia (10 September 1980) and the Governor of Victoria (1 October 1980).

On the trial of the applicants for an offence against State law (s. 314(1) of the Crimes Act 1958 Vict., as amended), their statements in the course of giving evidence before the Commonwealth Royal Commission were admitted in evidence. Section 6DD in its now amended form applied to any tender of evidence on and from its coming into force on 4 June 1982 (see s. 2(12) of the Statute Law (Miscellaneous Amendments) Act (No. 1) 1982). It thus came into force and applied to the tender at the trial which commenced on 8 March 1983. The admission of the statements was a violation of s. 6DD. The fact that the statements were also made to a State Royal Commission conducted conjointly with the Commonwealth Royal Commission does not alter the fact that they were made by the witnesses "in the course of giving evidence before" the Commonwealth Royal Commission and so attained the protection given by s. 6DD. It was thus of no avail to the prosecution that the offence charged was perjury in the course of making a statement before a State Royal Commission and that s. 30 of the Evidence Act 1958 Vict. would make such statements admissible had they been made to a State Royal Commission conducted separately, and thus not in the course of giving evidence before a Commonwealth Royal Commission.

In its previous form, s. 6DD made inadmissible only statements or disclosures in answer to questions put by a Royal Commissioner or any of the Commissioners. However this would have extended to the statements in question which were made in answer to questions put by counsel assisting the Royal Commission.

Where s. 6DD makes a statement or disclosure inadmissible, prosecuting counsel's duty is not to tender any evidence of it, and if any is tendered the judge's duty (whether or not objection is taken) is to reject the evidence. In the instant case, no objection was taken, and s. 6DD was not drawn to the attention of the trial judge or of the Court of Criminal Appeal. In order to vindicate the federal law, the time for seeking special leave should be extended, special leave granted and the appeal allowed. The convictions should be quashed and verdicts of acquittal entered.

This is an application for an extension of time in which to seek special leave to appeal from a decision of the Court of Criminal Appeal of Victoria, dismissing applications for leave to appeal from convictions for perjury. The point on which the applicants rely was not raised at the trial or in the Court of Criminal Appeal. In such circumstances, the Court is generally loath to consider the grant of special leave to appeal: Millard v. The King [4] . However, the question is one of general importance and has not been raised in another case in the Supreme Court of Victoria. I am therefore prepared to examine the merits of the question.

By letters patent dated 10 September 1980 ("the Commonwealth letters patent"), His Excellency the Governor-General appointed Mr. F. X. Costigan Q.C. a commissioner under the Royal Commissions Act 1902 Cth ("the Commonwealth Act") to inquire into the activities of the Federated Ship Painters and Dockers Union ("the Union"). Mr. Costigan was expressly authorized under the Commonwealth letters patent to conduct the inquiry in combination with any inquiry into the same or related matters authorized to be made under any commission issued by any State Governor.

By letters patent dated 1 October 1980 ("the State letters patent"), His Excellency the Governor of Victoria appointed Mr. Costigan a commissioner to inquire into the activities of the Union. Mr. Costigan's prior appointment under the Commonwealth Act was acknowledged in a recital to the State letters patent, which also expressly authorized him to conduct the inquiry in combination with any inquiry into the same matters authorized to be made under any commission issued by the Governor-General or any State Governor.

As authorized by both letters patent, the two inquiries were conducted in combination with each other by Mr. Costigan. In October 1981, in the course of the inquiries, the applicants each gave certain evidence on oath as a result of which they were charged with perjury under s. 314(1) of the Crimes Act 1958 Vict., which provides:

Whosoever commits wilful and corrupt perjury or subornation of perjury shall be liable to imprisonment for a term of not more than fifteen years.

The trial proceeded before a judge and jury and the applicants were convicted. Their respective applications for leave to appeal to the Court of Criminal Appeal were dismissed.

A measure of statutory protection is extended to witnesses who give evidence before Royal Commissions constituted under Victorian or Commonwealth law. The Victorian provision is to be found in s. 30 of the Evidence Act 1958 Vict., which provides:

No statement made by any person in answer to any question before any board or commission empowered under the provisions of this Act or other like body or person empowered under any other Act to summon witnesses shall (except in case of a charge against such person for perjury committed by him in making such statement) be admissible in evidence in any proceedings civil or criminal against him, nor be made the ground of any prosecution action or suit against him; The Commonwealth provision is contained in s. 6DD of the Commonwealth Act: A statement or disclosure made by any witness in the course of giving evidence before a Commission is not (except in proceedings for an offence against this Act) admissible in evidence against that witness in any civil or criminal proceedings in any court of the Commonwealth, of a State or of a Territory. The section in this form, replacing an earlier section, came into effect on 4 June 1982 by virtue of s. 2(12) of the Statute Law (Miscellaneous Amendments) Act (No. 1) 1982 Cth, after the allegedly false evidence had been given by the applicants in October 1981 but before they were arraigned for perjury on 8 March 1983. In the course of argument the question was raised whether the earlier section was the relevant section since it was in force when the alleged offence was committed. If that section had conferred a relevant immunity which was more extensive than the new s. 6DD then no doubt the effect of s. 8 of the Acts Interpretation Act 1901 Cth, as amended, would have been to secure the continuance of that immunity to protect the witness who was charged and tried subsequently to its repeal. However, the earlier provision was, if anything, more limited than its successor. In the circumstances there is no reason to doubt the applicability of the new s. 6DD to evidence, given before a Commonwealth commission, which is sought to be tendered in evidence against the witness in any civil or criminal proceedings taking place after its enactment: see Sorby v. The Commonwealth [5] . 1. (1983) 152 C.L.R. 281, at pp. 297, 305, 313, 323.

On behalf of the applicants, Mr. Hughes contends that the statements relied upon as grounding the perjury charges were given before a commission under the Commonwealth Act, and are therefore inadmissible in any proceedings other than proceedings under that Act. Accordingly, he says, they are not admissible in proceedings in the Victorian courts under the Crimes Act of that State. Mr. Hughes agreed that it was at the heart of the applicants' case that, when one person is conducting two inquiries concurrently under two different commissions, one Commonwealth and one State, then in the absence of express differentiation all the evidence given attracts the operation of s. 6DD of the Commonwealth Act.

On the other hand, Mr. Griffith for the Crown argues that the evidence was admissible, because it was given in the course of an inquiry held by authority of the State letters patent, and was within the exception contained in s. 30 of the Evidence Act.

On a number of occasions recently this Court has considered matters arising out of combined Commonwealth/State inquiries: Hammond v. The Commonwealth [6] ; Reg. v. Winneke; Ex parte Gallagher [7] ; Sorby v. The Commonwealth [8] . It is established that there is no inherent objection to two inquiries being conducted concurrently in appropriate circumstances. The practice has now received legislative recognition in s. 7AA, a section which was inserted in the Commonwealth Act by amending Act No. 139 of 1982.

(1982) 152 C.L.R. 188. 2. (1982) 152 C.L.R. 211. 3. (1982) 152 C.L.R. 281.

In Reg. v. Winneke the Court had occasion to consider a situation where a Commonwealth commission and a State commission were being held concurrently and a witness refused to answer a question. He was later prosecuted for an offence under the State law and the question arose whether the State provision was inconsistent with a Commonwealth provision to the same effect but carrying a different penalty. By majority, the question was answered in the negative. On that occasion, speaking of the relevant character of the act which constitutes the offence under the State Act, I said [9] :

There is one question, and one failure to answer. But that failure to answer exhibits a dual character because the Commissioner has made it plain that the question itself has a dual character. It is asked in his capacity as a State Commissioner as well as in his capacity as a Commonwealth Commissioner. The relevant character of the offence for which the applicants have been fined is the failure to answer a question which has been asked by authority of the State Commission. The fact that the same failure to answer may also constitute an offence under the Commonwealth Act and render the offender liable to a different penalty is entirely irrelevant unless that circumstance reflects an intention of the Parliament to cover the field. It is plain that the mere fact that one act or omission may constitute both an offence under a Commonwealth Act and a State Act does not attract the operation of s. 109. 1. (1982) 152 C.L.R., at pp. 232-233.

The problem in this case is different from that which was considered in Reg. v. Winneke. There it was a case of the one failure to answer a question giving rise to two offences, one under the Commonwealth Act and one under the State Act. Although the two Acts provide different penalties for the offence, a prosecution under the State Act in no way inhibits or impairs the operation of Commonwealth law. On the contrary, s. 30(2) of the Acts Interpretation Act expressly contemplates and makes provision for the case where an act or omission constitutes an offence under both a Commonwealth and a State Act. Section 11 of the Crimes Act 1914 Cth, as amended, is to a similar effect. Here, however, it is a case where, an allegedly false statement having been made on oath in the course of the combined inquiries, different measures are provided by the Commonwealth and State laws respectively for the protection of the witness from the admissibility of that evidence in subsequent proceedings.

The question that now arises is whether, when allegedly false statements are made to a combined commission, a person who is charged with perjury under the law of the State can claim the protection afforded by s. 6DD of the Commonwealth Act? Mr. Griffith relies on the fact that the applicants were charged in respect of statements made by them to a State commission. It is said to be immaterial that the same evidence was given at the same time to a Commonwealth commission. But how does the Crown answer an objection, based on s. 6DD of the Commonwealth Act, to the tender of the evidence? That objection is that the statement was made by the accused in the course of giving evidence before the Commonwealth commission and is therefore not admissible in evidence against them in criminal proceedings in a State court. The answer cannot be that theoretically there were two identical statements, one given to the State commissioner and the other to the Commonwealth commissioner. As I said in the passage I have cited from Reg. v. Winneke, there is a single course of conduct but it bears a dual character. In the present case, the evidence was given only once by each accused and it cannot be shorn of its dual character. It must always be true of it to say that it was a statement made in the course of giving evidence before a Commonwealth commission and likewise that it was a statement made in the course of giving evidence before a State commission. It is not possible to deny to the statement the character of a statement to which s. 6DD of the Commonwealth Act applies. The latter section expressly prevents the admission of the statement in the perjury proceedings, they being criminal proceedings in a court of a State other than proceedings for an offence against the Commonwealth Act. The evidence of the allegedly false statements being inadmissible, there is no other evidence to support the convictions. The applicants are entitled to a verdict of acquittal.

It may readily be conceded that such a result is unfortunate and in no way consistent with the general intention of the Parliament expressed in s. 7AA of the Commonwealth Act. It occurs because of a lack of correspondence between the Commonwealth and State laws which respectively prescribe the extent of the immunity which is to be accorded to statements made by a witness in the course of giving evidence before a Commission.

I would extend the time in which the applicants may seek special leave to appeal, grant special leave and allow the appeal. The convictions must be quashed and verdicts of acquittal entered.

On 8 March 1983 in the Supreme Court of Victoria a presentment was filed against the applicants and one Emilio Theodore Giannarelli charging each of them on one count of perjury. Giovanni Giannarelli was charged that on 20 October 1981 he "being a witness before the Royal Commission inquiring into certain matters relating to the Federated Ship Painters and Dockers Union or any officer or member of the Union pursuant to a commission issued to Francis Xavier Costigan Q.C. on the 1st day of October, 1980 by the Governor of the State of Victoria by and with the advice of the Executive Council of the said State as extended by Letters Patent made the 30th day of June 1981 knowingly falsely swore that he did not operate any accounts at the Elgin Street Carlton branch of the National Bank in a name other than "A. Giannarelli and Sons " ". Mario Giannarelli was charged that on 20 October 1981 being a witness before the same Royal Commission he "knowingly falsely swore that he had no accounts which he was entitled to operate at the Elgin Street Carlton branch of the National Bank other than a cheque account in the name of Mario Giannarelli ". The offences were charged pursuant to ss. 314 and 315 of the Crimes Act 1958 Vict. and ss. 17, 118 and 141 of the Evidence Act 1958 Vict.. The effect of these provisions is to render a person who knowingly gives false evidence before a Victorian Royal Commission liable to conviction for perjury.

The applicants and their co-accused pleaded not guilty. At their trial before Murphy J. and a jury, the prosecution tendered in evidence against the respective applicants a transcript of that applicant's evidence given on 20 and 29 October 1981 before the inquiry conducted by Mr. Costigan Q.C. On each of those dates Mr. Costigan was conducting his inquiry pursuant to a commission of inquiry issued by the Governor-General under the Royal Commissions Act 1902 Cth as well as pursuant to the Victorian Commission referred to in the presentment.

The transcripts of 20 October 1981 contained a statement by Giovanni Giannarelli that he had no bank account in Melbourne other than an account in the name of A. Giannarelli and Sons at the Elgin Street, Carlton, branch of the National Bank, and a statement by Mario Giannarelli that he did not have any account that he was entitled to operate other than a cheque account in the name of Mario Giannarelli at the Elgin Street, Carlton, branch of the National Bank. The transcripts of 29 October 1981 contained admissions by the respective applicants that the evidence given by him on 20 October relating to bank accounts was untrue. At the trial, no objection was taken to the tender of the transcripts of evidence. The applicants and their co-accused were convicted. The applicants sought leave to appeal to the Full Court against their convictions and against their sentences. The applicants did not then submit that the transcripts were wrongly admitted in evidence against them. The Full Court dismissed the applications by each of the applicants for leave to appeal against conviction and sentence. Application is now made for an extension of time in which to apply for special leave to this Court, for an order granting special leave and for an order allowing the appeal. The ground of the present applications is that the transcripts were inadmissible in evidence against the applicants by virtue of s. 6DD of the Royal Commissions Act introduced by s. 202 of the Statute Law (Miscellaneous Amendments) Act (No. 1) 1982 Cth. Section 6DD provides:

Section 6DD is a law relating to the admissibility of evidence in any civil or criminal proceedings in any Australian court. The occasion for its application is the tendering against a witness (i.e., a witness who has given evidence before a Commonwealth commission) of evidence of what the witness stated or disclosed in the course of giving his evidence before the commission. The section requires the court to refuse admission in evidence of any such statement or disclosure. The section does not apply to proceedings for an offence against the Royal Commissions Act. The operation of the section may well assist in eliciting information from witnesses before the commission, but the section does not affect the powers of the commissioner or his conduct of the commission. Section 6DD denies admissibility to evidence of the witness' statement or disclosure which would or might otherwise be admissible evidence against him.

There is no question here, as there was in Reg. v. Winneke; Ex parte Gallagher [10] , of the powers of a commissioner to conduct an inquiry in pursuance of Commonwealth and State commissions concurrently. It is common ground that Mr. Costigan was exercising the powers conferred upon him by both the Commonwealth and Victoria when the applicants each gave evidence before him on 20 and 29 October 1981. It follows that the allegedly false statements then made were made by the respective applicants "in the course of giving evidence before a Commission", that is, a Commonwealth commission, although the inquiry was being conducted under the Victorian commission also. Each of the applicants' statements on 20 and 29 October was a "statement or disclosure" which answers the statutory description. The transcripts which were admitted in evidence against the respective applicants fell within s. 6DD. They were inadmissible.

There is a provision similar to s. 6DD in the Victorian Evidence Act. Section 30 of that Act provides:

Though the admission of the transcripts in evidence was erroneous, the applicants did not take the point now raised either when the transcripts were tendered at the trial or when the case was argued before the Full Court. Had they done so, the present applications would have been unnecessary, for a conviction for perjury based upon the evidence made inadmissible by statute must be quashed: Reg. v. Buttle [11] . Having failed to take the point, should the applicants now be granted the indulgence of an extension of time and should special leave to appeal be granted? The point could not have been met by any evidence at the trial. There is no universal rule that a failure to object when inadmissible evidence is tendered is fatal to an appeal: see Stirland v. Director of Public Prosecutions [12] . The scope of s. 6DD is clearly a question of general importance, and if the true operation of that section prevents the proof of guilt of an offence of perjury (not being an offence against the Royal Commissions Act), effect should be given to it.

(1870) L.R. 1 C.C.R. 248. 2. [1944] A.C. 315, at pp. 327-328.

On a charge of perjury, the Crown must prove the giving of all the testimony which is referable to the fact which is alleged to be falsely sworn: R. v. Rowley [13] . If proof of the testimony cannot be given, the accused person must be acquitted. Section 6DD, by making the statements and disclosures to which it relates inadmissible, denies the possibility of a conviction for perjury in the making of such statements and disclosures except in proceedings for an offence against the Royal Commissions Act.

(1825) Ry. & Mood. 299, at p. 310 [ 171 E.R. 1027, at p. 1028].

If time is now extended and special leave granted, the convictions can be set aside on the appeal and effect given to s. 6DD. No injustice is thereby done to the Crown, and the future operation of s. 6DD upon subsequent prosecutions arising in similar circumstances will be defined. The time should be extended, special leave granted, the appeal allowed, and the conviction and sentence of each applicant quashed.

Each of these applications is for an extension of time to apply for special leave to appeal from a conviction of perjury under s. 314(1) of the Crimes Act 1958 Vict.. The offence was, in each case, alleged to have been committed in the course of giving evidence before the jointly conducted Commonwealth and Victorian Royal Commissions into matters related to the affairs of the Federated Ship Painters and Dockers Union. The question which each applicant seeks to raise on an appeal to this Court is whether evidence of statements made by him in the course of giving evidence before the Royal Commissions was wrongly received in evidence in his trial.

There are three features of the applications which ordinarily would combine to preclude the grant of special leave to appeal on a question of admissibility of evidence. Those features are: the failure to object to the admission of the evidence when it was tendered; the failure subsequently to seek a direction to the jury that the evidence be disregarded; and the failure to raise the question of the admissibility of the evidence upon the appeal to the Victorian Court of Criminal Appeal. The present circumstances are, however, exceptional in a number of respects. First, each applicant claims that the relevant statements were received in evidence in contravention of an express statutory provision, enacted by the Commonwealth Parliament in pursuance of a readily discernible legislative policy, that statements made by a witness before a Commonwealth Royal Commission shall not be admissible in evidence against him except in proceedings for an offence against the Royal Commissions Act 1902 Cth ("the Act"). Secondly, it is common ground that, but for the admission of evidence of the making of the allegedly perjured statements, the applicants must have been acquitted. In that context, the failure to object to the evidence of the making of the allegedly perjured statement was relied upon by the Crown as a factor militating against the grant of special leave to appeal rather than as an obstacle lying in the path of the success of an appeal if special leave were granted. Thirdly, the question of admissibility which each applicant wishes to raise is of considerable general importance. With some doubt, I have come to the view that, on balance, it is appropriate to consider the merits of the question of admissibility which each applicant wishes to raise. Accordingly, I agree that the time for applying for special leave to appeal should be extended.

Section 6DD of the Act, in its present form which was the form applicable to the applicants' trial, provides:

A statement or disclosure made by any witness in the course of giving evidence before a Commission is not (except in proceedings for an offence against this Act) admissible in evidence against that witness in any civil or criminal proceedings in any court of the Commonwealth, of a State or of a Territory. The applicants' trial was a criminal proceeding in a court of a State for an offence other than an offence under the Act. It follows that, under the express terms of s. 6DD, no "statement or disclosure made" by either applicant in the course of giving evidence before a Commonwealth commission was admissible in evidence against him on that trial. The only real question, in each case, is whether the allegedly perjured statement and the subsequent statements admitting and demonstrating its falsity were, for relevant purposes, statements "made in the course of giving evidence before" the Commonwealth commission.

It has not been suggested that any of the relevant statements of either applicant were made at a time when the Royal Commissioner was acting only in pursuance of his State letters patent. That being so, the relevant statements were made by each applicant in the course of giving evidence both before the Commonwealth commission and the Victorian commission. It is, however, argued that further analysis of the dual role of the Royal Commissioner discloses that the statements, although in fact made but once, should properly be regarded as having, in effect, been made twice: once before the Commonwealth commission (and not before the Victorian commission) and once before the Victorian commission (and not before the Commonwealth commission). Since, so the argument proceeds, the trial of each applicant was in a Victorian court for an offence against the provisions of the Victorian Crimes Act, the statements of which evidence was led should be seen as being statements made before the Victorian commission and not as being statements made before the Commonwealth commission. That argument involves, in my view, an unacceptable attempt to convert the dual character of evidence given before the jointly conducted commissions into a contrived and unreal schizophrenic dichotomy.

A statement made by a witness in the course of giving evidence before a Commonwealth commission remains a statement so made notwithstanding the fact that it was also a statement made before a State commission being conducted jointly with the Commonwealth commission. Such a statement remains one statement satisfying two different, but not inconsistent, descriptions: it does not become two statements each satisfying one of two mutually exclusive descriptions. It follows that the statements in question were statements of the kind referred to in s. 6DD of the Act and that evidence of those statements was not, by reason of the express provisions of that section, admissible on the trial of the applicants for perjury under s. 314(1) of the Crimes Act Vict.. It is apparent that no point would be served by ordering that either applicant again face trial on the charge of perjury under the Crimes Act Vict.. That being the case, I agree with the orders proposed by Wilson J.

It was suggested in argument that a refusal to read down the provisions of s. 6DD of the Act so as to leave open prosecutions under both Commonwealth and State laws in respect of a statement made before jointly conducted Commonwealth and State commissions would be productive of anomalous and undesirable consequences in some circumstances. If that be so, it highlights the undesirability of conferring powers of compulsory interrogation, with the negation of ordinary common law rights and privileges which such powers involve, without at the least taking steps to ensure that applicable legislative provisions are, according to their terms, appropriate for regulating the rights and immunities of those who are compelled to attend for interrogation before the particular recipient of the powers.

At a glance

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Decision date

Before

Source

Judgment (62 paragraphs)

Parties