Hammond v The Commonwealth

High Court of Australia|1982-09-01|Before: Deane JJ

High Court of Australia Gibbs C.J. Mason, Murphy, Brennan and Deane JJ. Hammond v The Commonwealth [1982] HCA 42

ORDER Appeal dismissed. On the motion for an interlocutory injunction, order as follows:Injunction granted as sought by par. (a) of the notice of motion, but limited to the examination of the plaintiff. Injunction sought by par. (b) of the notice of motion refused. Order that the plaintiff have the costs of the action excluding the cost of the application for an interim injunction and excluding the costs of the appeal from the order made on that application.

In September 1981 two Commissions were issued to the Hon. Sir Albert Edward Woodward, a Judge of the Federal Court of Australia ("the Commissioner"), one by the Governor-General of the Commonwealth of Australia and one by the Governor of the State of Victoria, to inquire into a number of matters including whether malpractices have occurred in the handling of meat. The Commonwealth Commission directed inquiry into malpractices in the handling of meat for export; the Victorian Commission directed inquiry into malpractices in the handling of meat for human consumption in Victoria.

In each case, the letters patent authorized the Commissioner, at his discretion, "to defer [his] inquiry into any matter that is the subject of a police investigation or of criminal proceedings in a court" and required him to furnish a report not later than 1 September 1982 or such later date as might be fixed, although he might, if he thought it appropriate, furnish an interim report.

On 19 October 1981 an information was laid against Maxwell John Hammond ("the plaintiff") charging that between 1 December 1980 and 31 July 1981 at Richmond and Langwarrin, in Victoria, he did conspire with Richard Vincent Hammond and other persons known and unknown to commit an offence against the law of the Commonwealth, to wit the export of a prohibited export. So to conspire would constitute an offence under s. 86(1)(a) of the Crimes Act 1914 Cth for which the plaintiff, if convicted, would be liable to be imprisoned for three years. Committal proceedings were heard in the Melbourne Magistrates Court. The plaintiff pleaded not guilty. In the course of the committal proceedings, evidence was given on behalf of the informant by one Vern Kennedy which, if accepted, would implicate the plaintiff in the alleged conspiracy. The evidence of Mr. Kennedy was the main evidence against the plaintiff. On 23 April 1982 the plaintiff was committed to be tried for the alleged offence at the County Court in Melbourne. The date for the trial has not, as yet, been fixed.

Meanwhile, the Commissioner has been conducting hearings in pursuance of his commissions under the letters patent. On 9 June 1982 Mr. Kennedy was called to give evidence before the Commission and evidence was received from him in respect of the alleged conspiracy for which the plaintiff was awaiting trial. That evidence included both oral evidence and the contents of a statement which Mr. Kennedy had made to the Federal Police. On 10 June 1982 Mr. Kennedy's evidence was completed, an application was made to the Commissioner by counsel for the plaintiff that the hearing of evidence on events surrounding the alleged conspiracy should be adjourned until after the trial. It was submitted to the Commissioner that the further investigation by him of the matters the subject of the pending legal proceedings against the plaintiff would constitute contempt of court. The Commissioner's attention was drawn to the judgments of this Court and of the Federal Court in Victoria v. Australian Building Construction Employees' and Builders Labourers' Federation; The Commonwealth v. Australian Building Construction Employees' and Builders Labourers' Federation [1] . I shall refer to that decision as "the Builders Labourers' Case".

On the following day (11 June 1982) the Commissioner rejected the submission that further inquiry into the matters the subject of the pending criminal proceedings would constitute contempt of the County Court. He said that he proposed to direct that the further evidence be taken in private. He said that the present case differs from the Builders Labourers' Case in two important ways, the first being that the trial in the County Court would be by jury, which was more likely to be influenced by pre-trial publicity. He continued:

The second point of distinction is that the issues and facts to be traversed in the Commission and the court in which the criminal proceedings are to be heard are much closer than was the case in the matter before the High Court.

Having said that, I should nevertheless stress that there are important differences between this hearing and any later criminal prosecution. The Commission is concerned to establish the existence of a malpractice, the methods used to carry out that malpractice and how the repetition of that malpractice can be prevented. It is not concerned with the guilt or innocence of a particular participant in the events being considered. This is particularly true in a case where the individuals concerned have already been charged with an offence. In other cases it may be necessary for the Commission to consider possible or probable guilt in order to be in a position to recommend the laying of charges.

The Commissioner concluded by saying that although he did not believe that these points of distinction are sufficient to lead to a different result, he had decided as a matter of caution to proceed with the matter in confidential session. The Commissioner agreed to allow a short time "for the matter to be tested elsewhere before the evidence on this aspect of the Commission's inquiry proceeds".

A writ and statement of claim was filed in this Court on the plaintiff's behalf on 17 June 1982. The defendants are the Commonwealth, the State of Victoria and the Commissioner. The statement of claim seeks declaratory and injunctive relief, the principal claim for injunctive relief being made against the Commissioner. An application for an interim injunction was made, ex parte, to a Justice of this Court on 18 June and was refused.

On 22 June the Commissioner resumed hearing evidence on matters relevant to the alleged conspiracy. The hearing was in confidential session but, over the objection of counsel for the plaintiff, the police officers who had investigated the matters upon which the plaintiff was to be examined were permitted to be present. On 22 and 23 June further evidence was given by Mr. Kennedy and by Mr. R. V. Hammond. The evidence called plainly related to the alleged conspiracy upon which the plaintiff had been committed for trial. On 23 June, the plaintiff was called to give evidence and sworn. The transcript of proceedings before the Commissioner discloses that he objected to giving evidence on the ground that he might incriminate himself. The Commissioner directed the plaintiff to answer the questions asked of him. The plaintiff was then asked a series of questions as to facts directly relevant to issues to be litigated on the hearing of the conspiracy charge against him. He refused to answer them. The Commissioner directed that the questions asked of the plaintiff and his answers to them be referred to the appropriate authority in order that consideration be given to bringing proceedings pursuant to the Royal Commissions Act 1902 Cth in respect of the plaintiff's refusal to answer the questions. The plaintiff was temporarily excused.

We were informed that the intention of the Commissioner was to hold only one further session for the examination of witnesses, on 6 August, and that it was desired to complete the examination of the plaintiff on that day. It may be assumed that no questioning of him has occurred pending the making of an order by this Court. It was not intended to examine any other person in connexion with the plaintiff or the alleged conspiracy. The Commissioner has sought an extension of time by three weeks from 1 September to make his report, but it is not yet known whether time will be extended.

Two matters came on together before this Court. The first was an appeal from the refusal of the Justice to grant an interim injunction. It was recognized that an appeal of that kind was inappropriate, and the appeal was not pressed. In any case the evidence now before the Court is not the same as that which was before the Justice. Secondly, the plaintiff moved on notice to the defendants for the following relief:

(a) An injunction restraining the Defendants until the hearing and determination of the trial of the Plaintiff before the County Court at Melbourne on a charge that he did between the 1st day of December 1980 and the 31st day of July 1981 at Richmond and at Langwarrin in the State of Victoria contrary to Section 86(1)(a) of the Crimes Act 1914 (Commonwealth) conspire with Richard Vincent Hammond and other persons known and unknown to commit an offence against the law of the Commonwealth [to] wit the exportation of a prohibited export each of them by counsel assisting the Thirdnamed Defendant, the servants or agents of any of the Defendants or otherwise from examining or resuming the examination on oath of the Plaintiff in respect of matters touching and concerning the said charge.

(b) An injunction restraining the Thirdnamed Defendant until the hearing and determination of the trial of the Plaintiff before the County Court at Melbourne on the said charge from further inquiring into or reporting on matters touching and concerning the said charge.

It is obvious, having regard to the projected sitting of the Commission and the time allowed for its report, that the present matter is one of urgency. It is therefore necessary to deal with the questions that now arise more briefly than might otherwise have been the case.

None of the defendants objected to the jurisdiction of this Court to entertain the present proceedings in its original jurisdiction. It may safely be assumed that jurisdiction exists.

The ground of the application for the injunction is that the further examination of the plaintiff, and the making of the report, would constitute a contempt of the County Court before which the criminal proceedings against the plaintiff are pending. To succeed in obtaining an injunction on that ground, the plaintiff must establish that there is a real risk, as opposed to a remote possibility, that justice will be interfered with if the Commission proceeds in accordance with its present intention. The tendency of the proposed actions to interfere with the course of justice must be a practical reality - a theoretical tendency is not enough. So much is recognized by the Builders Labourers' Case.

The first question that arises is whether it would be an interference with the due administration of justice if the examination of the plaintiff were to proceed before the Commission. A witness appearing before the Commission is subject to the obligations imposed by s. 6 of the Royal Commissions Act 1902 Cth and s. 16 of the Evidence Act 1958 Vict.. Section 6 of the Commonwealth Act provides:

If any person appearing as a witness before the Commission refuses to be sworn or to make an affirmation or to answer any question relevant to the inquiry put to him by any of the Commissioners he shall be guilty of an offence.

Section 6DD of that Act provides: 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. By s. 7(2), every witness appearing before the Commission has the same protection as a witness in any case tried in the High Court.

Section 16 of the State Act provides inter alia as follows:

(b) happening to be present before the board and being required so to do refuses to be sworn or without lawful excuse refuses or fails to answer any question touching the subject-matter of inquiry or to produce any document -

shall be guilty of an offence against this Act and liable to be dealt with in accordance with section 20. Sections 29 and 30 of that Act provide:

No witness shall on the trial of any issue joined or of any matter or question or on any inquiry arising in any suit action or proceeding whether civil or criminal be permitted to refuse to answer any question which is relevant and material to the matter in issue on the ground that the answer may expose him to any penalty or forfeiture or may disgrace or criminate himself, unless the court or person having by law or by consent of parties authority to hear receive and examine evidence is of opinion that the answer will tend to subject such witness to punishment for treason felony or misdemeanour.

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 proceeding civil or criminal against him, nor be made the ground of any prosecution action or suit against him; and a certificate signed by the chairman of such board or commission or body or by the sole commissioner or by such person that such statement was made in answer to any such question or in the course of any inquiry before such board commission body or person shall be conclusive evidence that the same was so made.

It was submitted by all parties that both under the Commonwealth Act and under the State Act a witness before a Commission who refuses to answer a question relevant to the inquiry is guilty of an offence, and that such a witness is not entitled to refuse to answer a question on the ground that the answer may incriminate him, although any answer given by the witness would not be admissible in evidence against him in civil or criminal proceedings. It was common ground that if the plaintiff were again examined at the inquiry he would be bound to answer questions designed to establish that he committed the offence with which he is charged, and that his objection on the ground that his answers might incriminate him would not constitute a defence to a prosecution for failing to answer the questions.

I am by no means satisfied that these submissions are correct. It would be necessary to find a clear expression of intention before one could conclude that the legislature intended to over-ride so important a privilege as that against self-incrimination. It was said that the privilege is only against testimonial disclosure - disclosure that may be used in evidence - and that since, under both the Commonwealth and the State Acts, the answers are not admissible in evidence there is no infringement of the privilege. King v. McLellan [2] and the other authorities mentioned in that case [3] were cited in support of this proposition. Again, I am not satisfied that this is correct; I would incline to the view that the privilege is against the disclosure of one's own criminality. However, it is not practicable now finally to resolve these questions. Since the parties were at one on the issue, the matter was not fully argued. Cases such as Rees v. Kratzmann [4] ; Mortimer v. Brown [5] ; and Mitcham v. O'Toole [6] were not discussed. The questions which are raised are difficult ones. In the case of the Victorian statute, s. 29 introduces an additional complexity. Since the urgency of the matter requires us to give an immediate decision, and the questions which I have mentioned are too important to permit of an answer without full consideration, the only possible course is to act on the submissions in which all parties agree.

[1974] V.R. 773. 2. [1974] V.R., at p. 777. 3. (1965) 114 C.L.R. 63. 4. (1970) 112 C.L.R. 493. 5. (1977) 137 C.L.R. 150.

Once it is accepted that the plaintiff will be bound, on pain of punishment, to answer questions designed to establish that he is guilty of the offence with which he is charged, it seems to me inescapably to follow, in the circumstances of this case, that there is a real risk that the administration of justice will be interfered with. It is clear that the questions will be put and pressed. It is true that the examination will take place in private, and that the answers may not be used at the criminal trial. Nevertheless, the fact that the plaintiff has been examined, in detail, as to the circumstances of the alleged offence, is very likely to prejudice him in his defence. In the Builders Labourers' Case I expressed the opinion that, if during the course of a commission's inquiries into allegations that a person had been guilty of criminal conduct, a criminal prosecution was commenced against that person based on those allegations, the continuance of the inquiry would, generally speaking, amount to a contempt of court, and that the proper course would be to adjourn the inquiry until the disposal of the criminal proceedings. Of course, the present inquiry is not simply into allegations against the plaintiff. It is an inquiry into alleged malpractices in connexion with the export of beef that are said to have caused immense damage to the reputation of our meat industry. It would be neither necessary nor right to adjourn this inquiry because a prosecution had been commenced against the plaintiff. But the public interest can be met, and the interest of justice at the same time safeguarded, if the inquiry proceeds to its conclusions without further examination of the plaintiff.

I would therefore restrain the defendants from examining or resuming the examination of the plaintiff under the Commissions until the determination of the trial.

However, in my opinion, no case has been made out for an injunction restraining the defendants from inquiring into or reporting on matters touching and concerning the charge against the plaintiff. In the circumstances, where no further inquiry is contemplated, other than by examination of the plaintiff himself, it is the reporting that is sought to be restrained. There is no suggestion that the Commissioner will report directly on the question whether the plaintiff is guilty of the offence charged. It is a mere speculative possibility that anything in his report will affect the plaintiff's trial. Since it has not been established that there is a real risk that the report will interfere with the administration of justice, the application for order (b) must fail. It would very seriously impede the conduct of executive inquiries into matters of public importance if no report could be made on a matter which touched and concerned a pending criminal charge. If a report could not be made in such a case, it is difficult to see any reason why the position would be different if the charge was merely contemplated and not pending. However, as I have said, the theoretical possibility that the trial of an accused person may be prejudiced cannot justify the courts in stultifying proper inquiries into matters of public interest simply because they relate in some way to the subject of a charge. In assessing the likelihood of prejudice, the court should be entitled to assume that the executive will exercise a sound discretion in making a decision whether any part of the report that might be prejudicial will be made public while criminal proceedings are pending.

I would grant an injunction as sought by par. (a) of the notice of motion but limit it to the examination of the plaintiff, and would refuse the injunction sought by par.(b).

I agree with the reasons expressed by the Chief Justice and that an injunction should be granted in the terms which he has proposed.

I agree generally with the Chief Justice's reasons, with the exception of one aspect to which I will refer later. The privilege against self-incrimination is part of our legal heritage where it became rooted as a response to the horrors of the Star Chamber. (See Quinn v. United States [7] .) In the United States it is entrenched as part of the Federal Bill of Rights. In Australia it is a part of the common law of human rights. The privilege is so pervasive and applicable is so many areas that, like natural justice, it has generally been considered unnecessary to express the privilege in statutes which require persons to answer questions. On the contrary, the privilege is presumed to exist unless it is excluded by express words or necessary implication, that is, by unmistakable language. I am not satisfied that the Royal Commissions Act 1902 has excluded the privilege against self-incrimination. In my opinion, the privilege remains under that Act and also under the Evidence Act 1958 Vict. in relation to Royal Commissions despite the provisions in each law which have been relied upon in argument as excluding it.

However, counsel for the Commonwealth government claimed that there was no privilege under the Royal Commissions Act 1902 except that mentioned in s. 6D(1) protecting secret processes of manufacture and contended that all other privileges were overridden by the plain words of the Act. This contention involved, as the Commonwealth accepted, that the privileges of Parliament were overridden. That is unacceptable. Until this case I would have thought it beyond question that such an Act does not affect parliamentary privilege (see Odgers, Australian Senate Practice, 5th ed. (1976), Ch. XXXIV, and Privilege of Parliament Australian Law Journal, vol. 18 (1944), p. 70). The privileges of Parliament are jealously preserved and rightly so. Parliament will not be held to have diminished any of its privileges unless it has done so by unmistakable language. It has not done so in the Royal Commissions Act 1902, nor has it abridged the privilege against self-incrimination.

Leaving aside for a moment the law dealing with Royal Commissions, each of the States including Victoria has adopted a code of criminal procedure calculated to protect accused persons from self incrimination. For federal offences the national Parliament has adopted by reference these stated procedures (see Judiciary Act 1903, s. 79). They are founded on the traditional accusatorial procedure and represent consistent adherence to the form of criminal justice considered to best preserve a balance between individual and societal interests in civil liberty and societal interest in the enforcement of the criminal law. These laws deliberately eschew inquisitorial methods, the abuse of which so offended the British nation as to cause it to revolt and eradicate them. It would be extraordinary if the national Parliament in the Royal Commissions Act, or the Victorian Parliament in the Evidence Act had impliedly abandoned the elaborate accusatorial code with its protection of an accused from inquisition and re-introduced the long-discarded inquisitorial procedures.

In the United States the Supreme Court has regarded the privilege against self-incrimination as serving two inter-related interests: the preservation of the accusatorial system of criminal justice as going to the integrity of the judicial system, and the preservation of personal privacy from unwarranted governmental intrusion (see The Constitution of the United States of America, Analysis and Interpretation, U.S. Government Printing Office, Washington (1973), pp. 1107-1108). The plaintiff's claim of privilege has been directly related to the criminal proceedings which are pending against him. The Commonwealth has taken no step, either to abandon the criminal proceedings or, it seems, to expedite their conclusion. Nevertheless the Commonwealth and the States contend and, for the purposes of this claim, the plaintiff does not contest, that the Commissioner, unless restrained by judicial order can, under both Acts, require the plaintiff to answer questions going directly or indirectly to the issue of his guilt on the charge of conspiracy, despite his claim of privilege against self-incrimination.

For the purposes of this case, therefore, it is assumed that the plaintiff has no privilege against self-incrimination. He is awaiting his trial on indictment for conspiracy against the laws of the Commonwealth. He has a constitutional right to trial by jury (see Constitution, s. 80). It is inconsistent with that right that he now be subject to interrogation by the executive government or that his trial be prejudiced in any other manner. I would take this view whether or not he has privilege against self-incrimination.

To maintain the integrity of the administration of the judicial power of the Commonwealth an order should issue restraining the Commissioner from directing the plaintiff to answer any question which would tend to incriminate him in respect of the pending criminal proceedings. It appears from the record and statements of counsel that the only questions which the Commissioner desires to put are those which would so tend to incriminate him. In view of his refusal to answer, continuance of the questioning would not serve any purpose of the Commission except to embarrass him.

Whether the Commissioner should be restrained from dealing in his report with the issues which will arise on the plaintiff's trial is troublesome. At one stage the plaintiff did not press for such an order. He also did not point to any specific prejudice, but this is understandable in advance of the report. We were informed that the Commissioner being conscious of the possibility of prejudice had indicated that he would not express findings in terms of guilt. In the circumstances, however, it is inevitable that any general pre-trial publication of a report identifying the accused and finding that he was party to the conduct charged, whether or not it is expressed in terms of guilt, will tend to prejudice the trial. The prejudice will be deepened by the fact that the Royal Commissioner is a highly respected judge.

It may be that the plaintiff would be entitled to lengthy postponement of his trial or that a fair trial may become impossible. Thus, any prejudice may not be irreparable. I therefore think that an order to restrain the Commissioner in respect of his report should not be made. In the absence of mature consideration which cannot now be given, I do not assent to the reasons given by the Chief Justice on this aspect.

I agree that an injunction should be granted in the terms proposed by the Chief Justice. The plaintiff, committed to stand his trial upon a charge arising under the Crimes Act, is not amenable to compulsory interrogation designed to obtain from him information as to the issues to be litigated at his trial: nemo tenetur seipsum prodere. The source of his immunity may be open to debate. On one view, the provisions of ss. 6 and 6DD of the Royal Commissions Act 1902 Cth and ss. 16, 29 and 30 of the Evidence Act 1958 Vict. may be construed as imposing a limited obligation to answer questions asked by a Royal Commissioner, an obligation which does not extend to answers which relate to issues to be litigated upon the trial of the witness or, at least, an obligation which does not extend to answers which may tend to incriminate the witness with the offence charged. On another view, the statutory provisions may be construed without any such limitation, and the source of immunity is then seen to exist in the necessary limitation upon the Commissioner's powers to inquire of the witness into the issues to be litigated between the witness and the Crown in the pending criminal trial.

Neither the arguments of counsel nor the time available allow for an exploration of these questions in the present case. It is sufficient for present purposes to appreciate that it is a principle deep-rooted in our law and history that the Crown may not subject an accused person to compulsory process to obtain his answers upon the issue of his guilt of an offence with which he has been charged. Some reference to the development of the principle may be found in Stephen's History of the Criminal Law, vol. I, ch. XI and Glanville Williams, The Proof of Guilt, 3rd ed. (1963), ch. 3. Its importance is eloquently described by Brown J. in delivering the opinion of the Supreme Court of the United States in Brown v. Walker [8] :

The maxim nemo tenetur seipsum accusare had its origin in a protest against the inquisitorial and manifestly unjust methods of interrogating accused persons, which has long obtained in the continental system, and, until the expulsion of the Stuarts from the British throne in 1688, and the erection of additional barriers for the protection of the people against the exercise of arbitrary power, was not uncommon even in England. [The abuses of interrogation which were] so painfully evident in many of the earlier state trials, notably in those of Sir Nicholas Throckmorton, and Udal, the Puritan minister, made the system so odious as to give rise to a demand for its total abolition. The change in the English criminal procedure in that particular seems to be founded upon no statute and no judicial opinion, but upon a general and silent acquiescence of the courts in a popular demand. But, however adopted, it has become firmly embedded in English, as well as in American jurisprudence. 1. (1896) 161 U.S. 591, at pp. 596-597 [40 Law.Ed. 819, at p. 821.]

An accused person may not be deprived of his immunity from interrogation by the exercise of the prerogative power to appoint a Commission of Inquiry and Report. Whether the Parliament could deprive him of that immunity when he stands charged with an offence against a law of the Commonwealth is a question which need not now be determined, for it is not to be thought that Parliament, in arming a Commissioner with the powers to be found in the respective Acts, intended that the power might be exercised to deny a freedom so treasured by tradition and so central to the judicial administration of criminal justice.

The background facts and the issues involved in this matter appear from the judgment which the Chief Justice has just given. It is unnecessary that I restate them.

It is not suggested that either of the Royal Commissions established, respectively, by the Commonwealth and Victorian letters patent was other than validly established. It is, however, plain that the actual proceedings of a royal commission can amount to an interference with the due administration of justice and can constitute contempt of court notwithstanding that the initial establishment of the commission was valid and unobjectionable (see McGuinness v. Attorney-General (Vict.) [9] , Johns & Waygood Ltd. v. Utah Aust. Ltd. [10] and Victoria v. Australian Building Construction Employees' and Builders Labourers' Federation [11] ).

(1940) 63 C.L.R. 73, at p. 85. 2. [1963] V.R. 70, at pp. 74-75. 3. Ante, pp. 53-54, 69, 94-95, 129, 158-159.

The criminal charge against the plaintiff is that between 1 December 1980 and 31 July 1981 at Richmond and Langwarrin in the State of Victoria he conspired with Richard Vincent Hammond and other persons known and unknown to export a prohibited export. At the heart of that charge, there lie allegations of the substitution of horse and kangaroo meat for boneless beef for the overseas market. The main witness against the plaintiff in the criminal proceedings is a Mr. Vern Kennedy. The substance of the evidence which Mr. Kennedy can be expected to give against the plaintiff on the trial appears from a statement which he made to the Australian Federal Police and which was admitted in evidence in the committal proceedings.

The transcript of relevant parts of the proceedings before the Royal Commissions discloses that the Commissioner considers that he is constrained to conduct an inquiry into the allegations of fact which constitute the basis of the criminal proceedings against the plaintiff. Mr. Kennedy has been called to give evidence before the inquiry and his above-mentioned statement has been placed before the Commissioner. The plaintiff's brother and alleged co-conspirator (Mr. Richard Hammond) has been called as a witness. The plaintiff himself has been compelled to give evidence and instructed to answer questions relevant to the subject matter of the pending criminal proceedings notwithstanding his objection that the answers might tend to incriminate him. The plaintiff's wife, who may have been excused from testifying against her husband on the trial (Crimes Act 1958 Vict., s. 400(3)), has also been compelled to give evidence. It is not disputed by counsel for the defendants that the following extract from the transcript of proceedings before the inquiry, which records an interchange between counsel for the plaintiff (Mr. Lord), counsel assisting the Commissioner (Mr. McPhee Q.C.) and the Commissioner, provides an accurate summary of the overall approach which is being adopted:

Mr. Lord: It was my understanding then from what Mr. Hayne said yesterday that after that evidence from Mr. Kennedy had been concluded that some of the alleged co-conspirators, including my client, would be called before this commission to give evidence which, as I understand it, would be in the nature of being asked their reply to the evidence of Mr. Kennedy.

Certainly, as I understand it, sir, it would be evidence - the matters that they would be asked would be essentially about the conspiracy that is alleged to have occurred between December 1980 and July 1981. I also understand from what Mr. Hayne said yesterday that some further persons who are not, as I understand it, charged as co-conspirators would be called before this commission to give evidence, again touching on the events which are alleged to constitute or surround the conspiracy.

Sir, am I correct in assuming that that is the course that is proposed because if that is really so I do need confirmation of that to form a basis of my application?

The Commissioner: It seems to be broadly the position, is it not, Mr. McPhee?

Mr. McPhee: I would not dissent from that except the persons who have not been charged would not necessarily be giving evidence in respect of the conspiracies with which Mr. Max Hammond has been charged. Save for that I would not dissent from what my learned friend has said.

It seems fair to comment that the parallel non-judicial inquiry being conducted by the Commissioner is to no small extend following the general form of a criminal trial, shorn of some of the privileges and safeguards, such as absence of compellability of an accused as a witness and observance of the ordinary rules of evidence, which protect an accused on trial in a court of law.

It has not been suggested on behalf of the plaintiff that the Commissioner has been motivated by other than a desire properly to discharge, in the public interest, the important administrative function with which he has been entrusted by the Commonwealth and Victorian governments. Nor has it been argued that the Commissioner has departed from standards and procedures which would, in the absence of pending criminal proceedings, be appropriate to be observed in the conduct of a royal commission. The basic submission advanced on behalf of the plaintiff is that, in circumstances where the plaintiff has been committed for trial and is waiting the hearing of the criminal proceedings against him, an inquisitorial inquiry of the type being conducted by the Commissioner into the very matters which constitute the basis of the criminal proceedings constitutes an interference with the due administration of criminal justice in his case.

The charge against the plaintiff is of an offence against the law of the Commonwealth. In hearing that charge, the County Court will be exercising part of the judicial power of the Commonwealth which is vested in it pursuant to s. 71 of the Constitution. The need to give an immediate decision in the present case precludes any detailed consideration of the general limitations upon legislative and executive power which, under the Constitution, flow from that fact. It suffices, for present purposes, to say that it is, in my view, clear that neither the Parliament nor the Executive Government of the Commonwealth or of a State is competent to prevent or prejudice the judicial exercise by a court of part of the judicial power of the Commonwealth by the type of interference with the due administration of justice in a particular case which would ordinarily constitute contempt of court. The question which arises is whether the conduct of the inquiry by the Commissions in the present matter involves, in the circumstances, such an interference with the due administration of justice in the criminal proceedings against the plaintiff in the County Court.

The mere fact that proceedings are pending in a court of law does not mean that any parallel or related administrative inquiry, conducted for proper administrative purposes, constitutes an interference with the due administration of justice in that court. For example, the existence of civil proceedings, in respect of certain alleged actions, will not ordinarily preclude proper administrative inquiries as to whether penal proceedings should be instituted in respect of those alleged actions. Thus, neither police inquiries nor committal proceedings constitute, in themselves, an improper interference with the proceedings of a court hearing a civil claim based on the subject matter of such inquiries.

On the other hand, it is fundamental to the administration of criminal justice that a person who is the subject of pending criminal proceedings in a court of law should not be subjected to having his part in the matters involved in those criminal proceedings made the subject of a parallel inquisitorial inquiry by an administrative tribunal with powers to compel the giving of evidence and the production of documents which largely correspond (and, to some extent, exceed) the powers of the criminal court. Such an extracurial inquisitorial investigation of the involvement of a person who has been committed for trial in the matters which form the basis of the criminal proceedings against him constitutes, in my view, an improper interference with the due administration of justice in the proceedings against him in the criminal court and contempt of court. Where a court is exercising the judicial power of the Commonwealth pursuant to s. 71 of the Constitution, such interference involves a derogation of the constitutional guarantees that flow from the vesting of the judicial power of the Commonwealth in courts of law. Thus, inHuddart, Parker & Co. Pty. Ltd. v. Moorehead [12] , O'Connor J., in considering the validity of a notice given under s. 15B of the Australian Industries Preservation Act 1906 Cth which required that certain information be provided to the Comptroller-General of Customs, commented:

When the Comptroller makes his requirement under 15b there can be no proceeding pending in a Court. He is not empowered to use the section with reference to an offence when once it has been brought within the cognizance of the Court. The power to prevent any such interference by the Executive with a case pending before the ordinary tribunals is undoubtedly vested in this Court by the Constitution. His Honour's views in that regard were subsequently indorsed by Barton J. in Melbourne Steamship Co. Ltd. v. Moorehead [13] . 1. (1908) 8 C.L.R. 330, at pp. 379-380. 2. (1912) 15 C.L.R. 333, at p. 346.

It was submitted on behalf of the Commonwealth that it has not been shown that the inquiry by the Royal Commissions into the plaintiff's involvement in matters the subject of criminal proceedings involves any substantial risk of serious injustice or serious prejudice. That submission struck me as unattractive at the time when it was made. I have found that it deteriorates upon closer consideration. The pending criminal proceedings against the plaintiff are brought by the Commonwealth. The parallel inquisitorial inquiry into the subject matter of those proceedings is being conducted under the authority of the Commonwealth. As I have said, the conduct of that inquisitorial inquiry is to no small extent following the general form of a criminal trial shorn of some of the privileges and safeguards which protect an accused in such a trial. The plaintiff has been compelled to be sworn as a witness and has been subjected to questioning in the course of that inquiry. Indeed, his refusal to answer questions has led to his being charged, on the information of an officer of the Australian Federal Police, with an offence under the Royal Commissions Act 1902 Cth. It is not, in my view, necessary to go beyond these things. In themselves, they constitute injustice and prejudice to the plaintiff.

The Court has been informed that the plaintiff is the only further witness whom it is proposed to call to give evidence before the Royal Commissions. In those circumstances, I respectfully agree with the Chief Justice that the appropriate order, as to the hearing of further evidence, is to restrain the Commissioner from examining or resuming the examination of the plaintiff. There remains for consideration the question whether, as the plaintiff claims, the Commissioner should also be restrained from reporting on the outcome of his inquiry in so far as it relates to the allegations made against the plaintiff in the criminal proceedings.

The Commissioner has made clear that he does not propose to make any direct finding on the question of the guilt or innocence of the plaintiff of the crime with which he has been charged. It is, however, apparent that the Commissioner considers it necessary, in the performance of his functions, to report to the Commonwealth and Victorian governments on the question whether the matters which form the basis of the criminal proceedings against the plaintiff constitute malpractices in the handling of meat. The extract from the transcript of proceedings before the Commissions set out above also makes clear the probability that the Commissioner's report in that regard would include findings and views on the involvement of the plaintiff in any malpractices which are found to have occurred.

I am conscious of the considerations of public interest which militate against restraining the Commissioner from reporting immediately and fully to the Commonwealth and Victorian governments on the matters upon which he is charged to report. Once the conclusion is reached, however, that the proceedings of the Commissions, in so far as they relate to the plaintiff's involvement in the matters that constitute the basis of the criminal proceedings against him, constitute an interference with the administration of justice and contempt of court, it appears to me to be plain that the plaintiff is, pending the final determination of those criminal proceedings, entitled to demand that the Commissioner proceed no further in his inquiry as to the plaintiff's involvement in relevant events. The matter has gone too far to be resolved simply by an injunction restraining further compulsory questioning of the plaintiff. Witnesses, including the plaintiff and his wife, have been compelled to give evidence in an inquisitorial inquiry of a type that, in my view, should not have been undertaken after the plaintiff had been committed for trial in the County Court. It seems to me that ordinary considerations of justice and fairness require that the Commissioner be restrained from reporting to the Governments his findings or views as to the plaintiff's involvement in the relevant events, until the criminal proceedings against the plaintiff have been concluded. To hold otherwise would be to hold that, while the conduct of the inquiry in so far as it related to that involvement constituted an improper interference with the due administration of justice, the results of that inquiry should be made available, against the plaintiff's wishes, to the Commonwealth and Victorian Governments in circumstances where it has not been suggested that there is any effective way of ensuring that any prejudicial findings and views are not made public before the pending criminal proceedings have been concluded.

In addition to the injunction which has been proposed by the Chief Justice, I would grant an injunction restraining the Commissioner, until the final determination of the pending criminal proceedings against the plaintiff, from reporting to the Commonwealth or Victorian Governments any findings or views as to the plaintiff's involvement in the matters mentioned in the statement of Mr. Kennedy made to the Federal Police and bearing the date 16 October 1981.

I note that it has not been necessary for me to reach any conclusion on the question whether the provisions of the Royal Commissions Act or the Evidence Act 1958 Vict. have the effect that a witness before a Royal Commission is not entitled to refuse to answer a question on the ground that the answer may tend to incriminate him. In my view, it matters not to the resolution of the present matter whether the plaintiff was obliged to answer any question asked of him before the Royal Commissions or, being obliged to attend to give evidence, was given the option of answering the question or asserting that the answer to it might tend to incriminate him. I would, however, indicate that, as at present advised, I am not persuaded that the provisions of either the Royal Commissions Act or the Evidence Act have the effect of depriving a witness before a Royal Commission of that common law privilege.

At a glance

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Decision date

Before

Source

Judgment (70 paragraphs)

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