KIEFEL J. One of the principal objects of the Criminal Assets Recovery Act 1990 (NSW) ("the CAR Act") is to provide for the confiscation of the property of a person, without requiring a conviction, if the Supreme Court of New South Wales finds it to be more probable than not that the person has engaged in serious crime related activities. The New South Wales Crime Commission ("the Crime Commission") applied for various orders including an order in the nature of confiscation of the first appellant's property and orders restraining any dealing with that property. A confiscation order of the kind sought may be based upon a finding that the person committed an offence constituting a serious crime related activity in a specified period before the application is brought.
Section 31D of the CAR Act provides for the making of ancillary orders where an application is made for a confiscation order. By s 31D(1)(a), the Supreme Court may, on the application of the Crime Commission, make an order for the examination, on oath, of an "affected person" or "another person" before the Court, or an officer of the Court, "concerning the affairs of the affected person". The Crime Commission sought such orders in respect of the appellants. Given that an order for confiscation must be made where the Supreme Court makes certain findings as to the person's involvement in a serious crime related activity, it follows that an examination may be directed to a person's involvement in serious crime. In the event that an examination is ordered, s 13A(1) of the CAR Act provides that the person is not excused from answering any question, or producing any document, on the ground that the answer or production might incriminate, or tend to incriminate, the person. The provision may be taken to intend to abrogate the common law privilege of the person against self-incrimination, subject to a protective qualification which will be later mentioned.
It is also a common law principle that the prosecution cannot compel a person accused of a crime to assist in the discharge of its onus of proof. This is an essential aspect of an accusatorial system and is fundamental to the common law. It lies at the heart of the system of criminal justice administered by the courts.
When the applications for the examination of the appellants were brought, each of the appellants had been charged with offences and their trials were therefore pending in the courts of New South Wales. The first appellant had been charged with two offences of money laundering, two offences relating to the possession of a prohibited drug and one offence in the nature of possessing stolen property. The first appellant was also later charged with a further offence in the nature of money laundering, which related to a large amount of cash found following a search of premises. Based on that cash, each of the appellants was charged with the offence of supply of prohibited drugs and with offences relating to firearms.
RS Hulme J heard the applications and reserved his decision. Whilst the decision was reserved, the appellants were arraigned in the District Court of New South Wales on an indictment of eight counts which related to the drug and firearm offences and the second money laundering offence. They pleaded not guilty. That money laundering offence was set down for a separate trial, but evidence of the money the subject of it was led in support of the drug and firearm offences. The trial for those offences was underway when RS Hulme J gave judgment. His Honour refused to make orders for the examination of the appellants "at this stage". It is to be inferred from his Honour's reference to the decision of this Court in Hammond v The Commonwealth that his Honour was concerned about the potential effect of the examinations upon the appellants' ongoing criminal trial. The Court of Appeal allowed an appeal from that decision.
The issues on the appeal
There can be little doubt that, on any examination ordered, the appellants would be subject to questioning by the Crime Commission as to offences which are the subject of the charges. It would appear that the Crime Commission conceded as much in the course of related proceedings in the Supreme Court, pending the application for leave to appeal from the decision of RS Hulme J, and the Crime Commission did not suggest to the contrary on this appeal.
Given the functions of the Crime Commission, the role which it has in liaising with other bodies and the constitution of its Management Committee, there can also be little doubt that the evidence obtained in an examination would be made available to investigating or prosecutorial authorities. As the cases explain, there are other effects upon an accused person's defence, and upon the conduct of his or her trial, which may follow as a result of an examination. There is a real risk, if not a likelihood, that aspects of the appellants' trials will differ from a criminal trial as it is ordinarily conducted, especially in its accusatorial aspects. Rather than the prosecution being required to prove its case without assistance from the appellants, the examination is likely to result in the prosecution being advantaged in the conduct of its case and the appellants prejudiced.
The Supreme Court has inherent powers to prevent obstruction to the administration of criminal justice. It has powers which might be used in conjunction with an order for examination, such as the power to limit the publication of information or to require an examination to be in private, and it has powers to prevent a contempt. The extent and efficacy of these powers, to limit the effects of an examination upon the appellants' trials and the conduct of their defence, which may be relevant to an exercise of discretion under s 31D(1)(a), are not relevant to the principal issue on the appeal, which concerns the construction of the CAR Act.
The principal issue on this appeal is whether the CAR Act can be said to authorise the examination of the appellants given the circumstance that they have been charged and their trials are pending. The appellants submit that such an intention is not evident from the provisions of the CAR Act. An intention to abrogate or curtail a fundamental principle or to authorise conduct which constitutes a risk of prejudice to a fair trial must be clear and unambiguous. This submission draws upon the principle of legality.
The appellants submit that neither s 31D nor s 13A can be read as a legislative intention to displace fundamental features of a criminal trial. In the appellants' submission, the purported abrogation, in s 13A(1), of a person's privilege against self-incrimination is not, of itself, clearly expressive of such an intention, not the least because the use of material obtained at, or as a result of, a compulsory examination is but one aspect of the prejudice which may be suffered at trial. An examination conducted in these circumstances presents a real risk of interference with the administration of justice. According to the appellants, the CAR Act cannot be read so as to warrant that risk.
The appellants contend that, in the event that this Court finds that s 31D(1)(a) does authorise an order for examination in the circumstance where a person stands charged of offences which are to be the subject of examination, the provision nevertheless provides the judge hearing the application with a discretion to refuse an order, having regard to the capacity of the examination to prejudice the fair trial of that person.
The appellants' submissions focus on the question of authorisation and therefore legislative intention. They do not concern the question of legislative power, which is to say whether the CAR Act could deprive an accused person of the privilege against self-incrimination.
The appellants' notice of appeal contains an additional ground of appeal. It is that if s 31D(1)(a), on its proper construction, requires the Supreme Court to determine an application for examination without regard to the prejudice to an accused's trial, then s 31D(1)(a) is invalid because it confers on the Supreme Court a function which is incompatible with the institutional integrity of the Court. This ground would raise an issue concerning Ch III of the Constitution but, as the appellants observe, neither the respondent nor any intervener contends that s 31D(1)(a) bears that construction. No constitutional issue therefore arises on this appeal.
X7 v Australian Crime Commission
Following the hearing of this appeal, judgment was delivered in X7 v Australian Crime Commission. By a majority it was held that the Australian Crime Commission Act 2002 (Cth) neither expressly nor by necessary intendment could be taken to authorise the examination of a person with respect to an offence with which that person is charged. The parties to this appeal were given the opportunity to and did file supplementary submissions addressed to that decision, as did the State of New South Wales.
The principle of legality
As Gleeson CJ observed in Al-Kateb v Godwin, the principle of legality is not new. In 1908, O'Connor J, in Potter v Minahan, referred to a passage from the fourth edition of Maxwell on Statutes which stated that "[i]t is in the last degree improbable that the Legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness". Absent that clarity of expression, the courts will not construe a statute as having such an operation. In Electrolux Home Products Pty Ltd v Australian Workers' Union, Gleeson CJ said "[t]he presumption is not merely a common sense guide to what a Parliament in a liberal democracy is likely to have intended; it is a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted. The hypothesis is an aspect of the rule of law." The principle has been cited and applied on many occasions as a rule of statutory construction. The principle was applied in X7.
In Coco v The Queen, it was explained that the insistence on express authorisation of an abrogation of a fundamental right, freedom or immunity must be understood as a requirement for a manifestation or indication that the legislature not only directed its attention to the question of abrogation, but has also determined to abrogate the right, freedom or immunity. General words will rarely be sufficient to show a clear manifestation of such an intention because they will often be ambiguous on the aspect of interference with fundamental rights. The same requirement must apply to any interference with fundamental principles or departure from the general system of law to which Potter v Minahan drew attention.
The applicable rule of construction recognises that legislation may be taken necessarily to intend that a fundamental right, freedom or immunity be abrogated. As was pointed out in X7, it is not sufficient for such a conclusion that an implication be available or somehow thought to be desirable. The emphasis must be on the condition that the intendment is "necessary", which suggests that it is compelled by a reading of the statute. Assumptions cannot be made. It will not suffice that a statute's language and purpose might permit of such a construction, given what was said in Coco v The Queen.
The fundamental principle and the criminal justice system
The golden thread of the system of English criminal law is that it is the duty of the prosecution to prove the prisoner's guilt. This is consistent with the presumption of an accused's innocence. It finds expression as a fundamental principle of the common law of Australia.
In Environment Protection Authority v Caltex Refining Co Pty Ltd ("EPA v Caltex"), the principle was stated to be that the onus of proof rests upon the Crown and its companion rule expressed to be that an accused person cannot be required to testify to the commission of the offence charged. It is fundamental to the criminal law that the prosecution, in the discharge of its onus, cannot compel the accused to assist it. In Sorby v The Commonwealth, this was described as "a cardinal principle".
I will continue to describe this principle - that the prosecution must discharge the onus of proof and cannot compel the accused to give evidence for it - as "the fundamental principle" of the common law; it is an essential aspect of the criminal trial in our system of criminal justice. In common with the civil trial, the criminal trial is adversarial in nature and it is accusatorial. As X7 holds, it is the fundamental principle and the accusatorial system of criminal justice to which attention must be directed in construing a statute which requires a person charged with an offence to answer questions about the offence. As was said in X7, the question that must be addressed is whether the statute in question clearly intends to alter that system and that principle.
Trials upon indictable offences take place before a jury, the function of which is to determine whether the prosecution has proved beyond a reasonable doubt that the accused committed the offence in question. The institution of trial by jury, by s 80 of the Constitution, serves to confirm the nature of a trial as accusatorial. In R v Snow, Griffith CJ said that the history of the law of trial by jury is sufficient to show that s 80 "ought prima facie to be construed as an adoption of the institution of 'trial by jury' with all that was connoted by that phrase in constitutional law and in the common law of England." It is therefore possible that a derogation, in a fundamental respect, from such a trial may raise a constitutional question. It is not necessary to further consider that possibility in this case.
The fundamental principle and the accusatorial system of criminal justice owe much to the reaction of the common law, and the people, to the interrogations conducted by the ecclesiastical courts and the Star Chamber. Those institutions claimed the power to summon a defendant with no warning of the charge to be made against him and to examine him on oath. In a notable case, decided even before the abolition of the Star Chamber, the Court of Common Pleas released a defendant who had been imprisoned for refusing to reply to questions put by the Court of High Commission on the principle that no‑one is compelled to give himself away. It is from these sources that the fundamental principle and the accusatorial system of criminal justice were developed.
In the mid-16th century, justices of the peace, who acted as part magistrate and part police officer, also conducted interrogations pre-trial, but this practice also gradually changed. By the early 19th century, some magistrates were telling accused persons that they were not bound to answer questions put during pre-trial interrogations. In 1848, a statute provided that the primary function of the justices was to hear the witnesses against the accused and, having done so, they were to warn the accused that he was not bound to say anything, although he was free to do so.
The requirement of the law, that the accused not be questioned, has had its critics, including Bentham. Sir James Fitzjames Stephen was not wedded to the right to silence, but considered that it had virtue in that it encouraged the search for independent evidence. The process and methods of police investigation have developed considerably since that time, but they have done so in accordance with the requirements of the system of criminal justice.
In EPA v Caltex, McHugh J expressed the view that the common law did not see the criminal trial, as it developed, as an inquiry into guilt. Consistently with the civil action, it was adversarial and the Crown had to prove its case. To require the accused to convict himself from his own mouth was regarded as oppressive. If the prosecution could force the accused to provide evidence, in the view of the common law, the differences between the accusatorial and inquisitorial systems would be theoretical rather than real.
The requirement of the law that an accused person cannot be compelled to give evidence for the prosecution has thus far been spoken of in the wider dimension of the accusatorial system of criminal justice. It is often described as the "right to silence", a term which suggests a right personal to the accused. It may be said that the fundamental principle results in a freedom or immunity for the accused, but it may not strictly be correct to call it a right. It is best understood in the context of the accusatorial system of criminal justice. That system reflects the balance struck between the power of the state to prosecute an individual and the position of the individual who stands accused. By way of contrast, the privilege against self-incrimination (which I will continue to refer to as "the privilege") is a personal right, one which applies in all courts, tribunals and inquiries. The privilege is not to be equated with the inability to compel an accused person to give evidence. The privilege may be lost but the fundamental principle of the accusatorial system of criminal justice remains.
The privilege shares the same historical source as the fundamental principle and is a further expression of the maxim upon which the fundamental principle is based. In Sorby v The Commonwealth, the privilege was also said to be "deeply ingrained in the common law" and a "fundamental … bulwark of liberty". In its operation, it supports the fundamental principle and the system of criminal justice, although the privilege has a number of features which set it apart.
The privilege applies in all proceedings, criminal or civil. Although supporting the fundamental principle and the system of criminal justice, it is a basic and substantive common law right of the person. It is the privilege of any witness in any proceedings to refuse to answer an incriminating question. It must be claimed by the witness when the question is first put to him or her whilst in the witness box. The privilege attaches to the answer which is sought. Because it is a privilege of the person, it may be waived. It has been said that, generally speaking, the privilege may be abridged by statute. Whether that is so in connection with an accused person is, as has been observed, not a matter to be considered on this appeal.
An accused may elect to give evidence in his or her defence, although this has not always been the case. The right was provided in relatively recent history but it is now entrenched as an essential aspect of the criminal trial. More relevantly for present purposes, an accused cannot be compelled to enter the witness box at his or her trial. Therefore a question of an incriminating kind may never in fact be put.
Other inter-related rights and immunities have grown out of the system of justice which is founded upon the fundamental principle. Substantive and procedural matters have become woven into the law. For example, persons suspected of having committed a crime are immune from having to answer, under compulsion, questions of the police. This in turn led to rules about confessions that are involuntary and those obtained unfairly. In R v Sang, Lord Diplock observed that the role of the trial judge in relation to confessions had had a long history, dating back to the period when an accused was not entitled to give evidence in his own defence and therefore could not deny a confession. However, the underlying rationale of the trial judge's role, his Lordship said, was "now to be found in the maxim nemo debet prodere se ipsum, no one can be required to be his own betrayer or in its popular English mistranslation 'the right to silence'".
This passage from R v Sang was cited with approval in Tofilau v The Queen, where it was said that if an accused is convicted wholly or largely on the basis of a confession, a question would arise in some minds as to whether it could be said that the duty of the prosecution to prove guilt had been discharged. Reference was there made to what Frankfurter J had said in Rogers v Richmond:
"[O]urs is an accusatorial and not an inquisitorial system - a system in which the State must establish guilt by evidence independently and freely secured and may not by coercion prove its charge against an accused out of his own mouth."
Criminal proceedings are ordinarily regarded as commencing with a charge, or similar procedure, and continuing until conviction or acquittal. They may extend to what occurs before the trial itself. It is the duty and function of the court in which the trial is pending to ensure that the trial will be in accordance with law. This requires, at a minimum, that it be conducted in accordance with the fundamental principle and the requirements that flow from it.
There are many aspects of the system of criminal justice administered by the courts. Some of them, referred to above, derive from the fundamental principle and reflect the requirement that the trial be accusatorial. Other requirements are often spoken of as necessary to a "fair trial".
To ensure a "fair trial", it has been said, by way of example, that: sufficient particulars of an alleged offence should be provided; the prosecution should make available material evidence; and a judge should give such directions to the jury as are necessary to ensure a fair trial of the accused. Although regarded as a concept which is fundamental to the system of criminal justice in Australia and "so elementary as to need no authority to support it", it is understandable that there has been no judicial attempt to list, exhaustively, the attributes of a fair trial. It may, however, be said that the concept is not entirely one-sided. The public interest in the administration of justice also requires that the process be fair to the prosecution. Thus, an accused is required to give notice of alibi and other evidence of particular kinds.
The questions on this appeal are not directed to whether the appellants will receive a "fair trial". Although that term is employed in submissions on the appeal, it is liable to distract from the real issues, the principal of these being whether the CAR Act authorises an alteration to, or interference with, the fundamental principle and, therefore, the system of criminal justice administered by the courts.
A reference to that principle and that system is not to be taken to deny that there are some aspects of the criminal trial process which have been altered over time, or to say that history does not furnish anomalies. The requirement of proof itself may seem to have been affected by the averment that has been applied to some, usually lesser, offences. And, as will be later discussed, the Chancery Court did not embrace the right of a person not to be questioned in bankruptcy cases.
Nevertheless, it cannot be doubted that the fundamental principle remains essential to the system of criminal justice administered by our courts, as does the accusatorial nature of the process. So much is confirmed by X7. The requirement of proof is recognised in various statutes relating to criminal evidence and procedure. Section 17(2) of the Evidence Act 1995 (NSW) provides that an accused person is not competent to give evidence as a witness for the prosecution. By s 139(1), evidence of a statement made by a person under arrest is taken to have been obtained improperly where the person was not cautioned. Section 141(1) provides that "the court is not to find the case of the prosecution proved unless it is satisfied that it has been proved beyond reasonable doubt." The Criminal Procedure Act 1986 (NSW) requires a magistrate hearing committal proceedings to discharge the accused if the magistrate considers that the evidence is not capable of satisfying a jury to the requisite standard that the accused has committed an indictable offence.
The courts and the administration of justice
The law of contempt is concerned with judicial process and the exercise of judicial power, and is the mechanism by which a court ensures the integrity of the system of justice which it administers. Conduct will amount to a contempt if there is a real risk, as opposed to a remote possibility, that justice will be interfered with. The essence of contempt of this kind is a "real and definite tendency to prejudice or embarrass pending proceedings". To safeguard the proper administration of justice, the courts will curb conduct, including freedom of speech, to the extent necessary to prevent prejudice to proceedings.
In Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission, Mason J adverted to the possibility that the Trade Practices Commission could, in exercising the power conferred by its statute, interfere with court proceedings. But, as his Honour pointed out, a statute expressed in general terms should not be construed so as to authorise the doing of an act which amounts to a contempt of court. The question which therefore arises in this appeal is whether the exercise of the powers conferred by the CAR Act, which are expressed in general terms, to compel answers to questions concerning an offence with which a person is charged could constitute a contempt. In X7, it was held that a series of cases, culminating in Hammond v The Commonwealth, provide the answer.
In Clough v Leahy, Griffith CJ held that an inquiry, by the executive, could be conducted into the guilt or innocence of persons, so long as it did not involve a trial and did not have legal consequences. However, if, in the conduct of the inquiry, a person were to do an act constituting an interference with the course of justice, that person would not be protected from proceedings for contempt. His Honour also said, in terms later adopted by Latham CJ in McGuinness v Attorney-General (Vict), that when a Royal Commission was established to inquire into a matter, at the same time as an offence arising from it was being criminally prosecuted, there would almost certainly be an interference with the course of justice and a contempt.
In Victoria v Australian Building Construction Employees' and Builders Labourers' Federation ("the BLF Case"), proceedings were on foot in the Federal Court of Australia for the cancellation of the registration of a construction trade union when a Royal Commission commenced hearing evidence into various matters concerning that union. This Court held that the conduct of a commission of inquiry may be a contempt if it creates an actual interference with the administration of justice or a real risk of interference, or a tendency to interfere, with the administration of justice. The Court divided on the question whether the Royal Commission had that effect and as to what constituted an interference with the administration of justice.
Gibbs CJ considered that there was no risk of interference, since the Royal Commission's inquiry was not directed to the grounds relevant to the court proceeding and did not involve a prejudgment of those issues. In the course of his reasons, his Honour said, by reference to Clough v Leahy and McGuinness, that the continuance of a commission may amount to a contempt, even if it was not established for the purpose of interfering with the course of justice. If, during the course of a commission of inquiry into allegations that a person was guilty of criminal conduct, a prosecution was commenced against the person based on those allegations, the continuance of the inquiry would, speaking generally, amount to a contempt of court. The proper course in those circumstances, his Honour said, would be to adjourn the inquiry until the conclusion of the criminal proceedings.
Hammond's case
There can be little doubt that these views informed the approach taken by Gibbs CJ when granting an injunction to restrain the Royal Commission in Hammond. The judgment in Hammond was delivered a few months after that in the BLF Case. Indeed, in Hammond, his Honour referred to what he had said in the BLF Case. It will be recalled that it was to Hammond that the primary judge in this case referred, in coming to the conclusion that the examination of the appellants should not be ordered "at this stage".
Mr Hammond had been committed for trial when a Royal Commission heard evidence implicating him in a conspiracy. The Royal Commissions Act 1902 (Cth) made it an offence for a witness before the Commission to refuse to answer any relevant question put by a Commissioner, but also provided that the answer was not admissible against the person in civil or criminal proceedings. Provisions of the Evidence Act 1958 (Vic), concerning witnesses before a board appointed by the Governor in Council, were to similar effect and stated that a witness could not refuse to answer any relevant question on the ground that it may incriminate the person or expose him or her to a penalty.
The Commission determined to proceed with its hearing of evidence, including the questioning of Mr Hammond, despite the request of his lawyers for an adjournment until the conclusion of his trial. Instead, the Commission undertook the questioning in private session. Despite that step being taken, this Court restrained the continuance of the examination until the conclusion of the criminal trial.
Gibbs CJ said that even though Mr Hammond was to be examined in private, and the answers he gave could not be used at the criminal trial, "[n]evertheless, the fact that [he was] examined, in detail, as to the circumstances of the alleged offence, [was] very likely to prejudice him in his defence." His Honour said that if one assumed that Mr Hammond was bound to answer questions designed to establish that he was guilty of the offence with which he had been charged, it must "inescapably" follow that there was "a real risk that the administration of justice [would] be interfered with." His Honour said, by reference to what he had earlier said in the BLF Case, that the continuance of the inquiry would, generally speaking, amount to a contempt and the proper course would be to adjourn it until the disposal of the criminal proceedings.
Mason and Murphy JJ agreed with Gibbs CJ's reasons, although Murphy J would not have ordered an injunction postponing the examination to the completion of the criminal trial; rather, his Honour would have wholly restrained the Commissioner from directing Mr Hammond to answer any incriminatory question.
Deane J also considered that the inquiry constituted an improper interference with the due administration of justice in the criminal proceedings. His Honour said that it was "fundamental" to the administration of criminal justice that a person not be made the subject of a parallel inquisitorial inquiry concerning the matters with which he or she was charged. His Honour also viewed the interference as a derogation from the judicial power of the Commonwealth vested by the Constitution, a subject which does not arise on this appeal.
Brennan J agreed that an injunction should be granted, but his Honour was disposed to think that the immunity the common law provides an accused was not to be regarded as displaced by the relevant legislation. His Honour's approach may be given to involve the application of the principle of legality and will require further attention.
Little weight was given to the views expressed in Hammond in the judgments in the Court of Appeal in this case. It was said that no principle could be discerned from it. That was not the view of the majority in X7. It seems clear enough that the injunction was granted in Hammond because examination of Mr Hammond, in a parallel inquiry, concerning the offence with which he was charged constituted a real risk of interference with the administration of criminal justice and that must be taken to refer to the system of criminal justice referred to above and the principle which is fundamental to it. It is not as if Hammond was the first occasion on which this Court had expressed the view that the continuance of such an inquiry would usually constitute a contempt. That view may be traced from Clough v Leahy, through McGuinness, to the BLF Case.
True it is, as Gibbs CJ explained, that the circumstances in Hammond were urgent. Judgment was delivered in a matter of days. Not all issues were fully canvassed. Nevertheless, this Court had earlier addressed the question whether a parallel inquiry might constitute a real interference with justice in the BLF Case. To the extent that references in the reasons of the Court of Appeal to the urgency which attended Hammond suggest that it lacks the reasoning necessary for an authoritative decision, they are not well founded.
The respondent in this appeal suggests that the outcome in Hammond might be explained by the particular circumstances of that case, including the fact that investigating police officers were present when Mr Hammond was examined and that the transcript was to be provided to them. Neither factor is mentioned by Gibbs CJ as relevant to his Honour's decision. The former fact was referred to by his Honour only as part of the background and he did not advert to the latter fact at all.
In the Court of Appeal, little consideration appears to have been given to the nature and extent of the prejudice identified in Hammond as giving rise to a risk of interference with justice in this case. This risk was discounted because the registrar before whom the examinations would take place could limit the potential prejudice. The only risk the Court of Appeal identified and considered was that answers given in the examination might be the source of information used in the trials of the appellants; which is to say the derivative evidence referred to in s 13A(3) of the CAR Act, which is not the subject of the protection given under s 13A(2). Meagher JA considered the risk arising from the use of such evidence to be an insufficient basis for declining an order for examination.
The reasoning of Gibbs CJ, in Hammond and in Sorby v The Commonwealth, shows that the use of material obtained as a result of a compulsory examination is but one aspect of the risk of interference with the criminal trial. In Hammond, his Honour obviously thought there was more at stake than merely the loss of the privilege when his Honour said that "the fact that [Mr Hammond] had been examined, in detail … is very likely to prejudice him in his defence." In R v Seller, the New South Wales Court of Criminal Appeal referred to other effects an examination may have on a criminal trial, such as the prosecution being forewarned of defences, and explanations, that are not otherwise apparent, being provided of transactions. At first instance a further effect was identified, namely the provision of information which assists the prosecution in preparing its witness statements and presenting its case.
It is likely that the prosecution will be advantaged at trial by the examination of the appellants in a way for which the system of criminal justice would not otherwise provide. The attainment of such an advantage through the exercise of statutory powers may in itself amount to an interference with the administration of justice. Such an advantage may, to an extent, correspond with the prejudice caused to an accused person. It may be more extensive. But, as it will be recalled, it was not the advantage gained by the prosecution which was identified in Hammond to follow "inescapably" from an examination of a person charged with an offence about that offence. The interference, and thus the contempt, identified by Gibbs CJ in Hammond lay in the fact that if Mr Hammond were examined, in detail, as to the circumstances of the alleged offence, he was likely to be prejudiced in his defence. Mr Hammond would have been prejudiced in his defence "because he could no longer determine the course he would follow at his trial according only to the strength of the case that the prosecution proposed to, and did, adduce in support of its case that the offence charged was proved beyond reasonable doubt".
What was identified in Hammond was not the loss of some forensic advantage in an accused person. In any event, to describe the effects of an examination for an accused person in this way tends to trivialise both them and the fundamental principle in its practical operation. The choices open to an accused person with respect to the conduct of that person's defence result from the requirement of the fundamental principle that the prosecution prove its case. It is therefore not correct to cast doubt upon the importance of those choices or whether the accused should be entitled to them. Neither Hammond nor the cases preceding it considered the prejudice occasioned to an accused to be insubstantial.
The conclusion that was reached in Hammond was that an examination of an accused person risks an interference with the administration of justice because it may prejudice the person in his or her defence. It follows that if general legislation which provides for compulsory examination was to be read as permitting the examination of an accused person, the principle fundamental to the accusatorial system of justice would be altered. That proposition was accepted and applied by a majority of this Court in X7. Hammond is not to be distinguished on the basis that the legislation there in question concerned an examination by the executive, whereas the CAR Act involves an examination by the executive before the Supreme Court or an officer of the Court. As will be explained later in these reasons, the same conclusion as to the risk to the administration of justice is reached in each case. Given the need for continuity and consistency in judicial decisions, X7 should be followed.
The CAR Act - a clear intention?
The question whether the Royal Commissions Act could be said to have intended to abrogate Mr Hammond's privilege against self-incrimination, or to affect the operation of the fundamental principle in a criminal trial, did not directly arise in his case. It appears from the reasons of Gibbs CJ that a concession was made by all present at the hearing that the effect of the relevant legislation was that a witness was not entitled to refuse to answer an incriminating question put in the course of an examination. The matter proceeded upon that assumption, but Gibbs CJ expressed himself as by no means satisfied that it was correct. His Honour said that "[i]t 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".
Brennan J referred to the "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." It was not necessary, his Honour said, to determine in Hammond whether Parliament could deprive a person of that immunity when he or she stands charged with an offence, "for it is not to be thought that Parliament, in arming a Commissioner with the powers … 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."
In these statements, Gibbs CJ and Brennan J may be taken to have had in mind the principle of legality. Gibbs CJ spoke of the need for clarity of expression if the privilege is to be overridden; Brennan J spoke of the presumption of the law that the legislature does not intend to deny or restrict a fundamental principle which is essential to the criminal justice system. It will be recalled that their Honours were referring to legislation which, on its face, appeared to deny the privilege, but was not explicitly made applicable to accused persons. As was explained earlier in these reasons, by reference to Potter v Minahan, a statutory provision will be taken to have intended such an effect only if that intention is unambiguously clear. This is not a low standard.
Section 31D(1)(a) of the CAR Act provides for an order for examination "concerning the affairs" of a person affected by an application for a confiscation order. The affairs of the person may include the nature and location of any property in which that person has an interest. It is to be inferred from ss 27(2) and 27(2A) that the examination may be directed to the examinee's participation in serious criminal offences. Section 27(2) provides that the Supreme Court must make an order in the nature of confiscation of property if it finds it to be more probable than not that the person against whom the order is sought was, in the six years prior to the application being brought, engaged in a serious crime related activity, involving an indictable quantity of prohibited drugs or an offence punishable by imprisonment for five years or more. By s 27(2A), the Supreme Court must make such an order if it finds it more probable than not that the person derived proceeds from an illegal activity, or the illegal activities, of another person. Either conclusion may be based upon a finding that: "some offence or other" (rather than a particular offence), which constitutes a serious crime related activity and is punishable by imprisonment for five years or more, was committed; or "some offence or other" constituting a serious crime related activity, involving an indictable quantity of drugs, was committed.
The legislature may therefore be taken to have intended that a person may be asked questions, on examination, concerning his or her participation in serious crime and derivation of the proceeds from illegal activities. It is intended that a person may be asked questions as to the commission of an offence by that person or in conjunction with others. Section 13A confirms this to be the case.
Section 13A is directed to the answers given to such questions. It applies to a person being examined under a s 31D(1) order, in the same way as it applies to a person being examined under s 12(1), which provides for an examination order to be made when a restraining order, pursuant to s 10A, has been made. Section 13A(1) provides that a person being examined under s 12 is not excused from answering any question, or producing any document, on the ground that that answer or document might incriminate, or tend to incriminate, the person. Section 13A(2) then provides that the answer or document is not admissible in criminal proceedings, except in proceedings for an offence under the CAR Act, if the person made an objection at the time he or she was questioned, or was not advised that he or she might do so. However, by s 13A(3), further information obtained as a result of an answer, which is to say derivative evidence, is so admissible.
What question must the legislature's attention have been directed to in order for the respondent to succeed in this Court? The question is not simply whether it intended to abrogate the privilege and redefine the evidentiary effects flowing from that abrogation. Such a question may readily be answered in the affirmative. Nor is it a correct approach to assume, on the basis of that answer, a wider intention on the part of the legislature, namely that the abrogation of the privilege is to apply in all circumstances including where an examinee's trial is pending. To make that assumption is to render inoperative the presumption on which the principle of legality is based: that the legislature does not intend to abrogate or restrict a fundamental right or freedom except by words of clear intendment.
It is not only the personal privilege which is affected if the CAR Act applies so as to compel an accused person to give answers under examination to questions concerning the offence. If the CAR Act is to be understood to so apply, it must manifest an intention to affect other fundamental principles. There must be an intention to alter the fundamental principle and the accusatorial system of criminal justice. Moreover, since such an examination clearly risks interfering with the administration of criminal justice, and therefore a contempt, as Hammond and X7 hold, the CAR Act, at the very least, must be seen to have addressed that problem. If the CAR Act does purport to so apply, other questions may arise. But it will be seen that in no respect has the CAR Act addressed itself to these questions. The necessary intention is not apparent.
In the Court of Appeal, Beazley, McColl and Macfarlan JJA agreed with the reasons of Basten JA. His Honour reasoned, essentially, that statute law may vary the general law and, in particular, constrain the right not to answer incriminating questions. On the assumption that a scheme of investigation may diminish the protections afforded by the common law to an accused person in criminal proceedings, the question, in his Honour's view, becomes only whether it does so authorise. However, the question of construction posed by the principle of legality actually resides in the assumption stated. Does the CAR Act intend to alter the positions of an accused person and the prosecution in criminal proceedings? The reasons of the Court of Appeal do not acknowledge that a fundamental principle of the law is at stake and that the administration of justice will be affected. Significantly, they do not apply the requirement of the principle of legality that such effects must be seen as intended "with irresistible clearness".
Consideration of whether the CAR Act manifests the requisite clarity of intention may commence with s 31D(1)(a), which is in general terms. It provides the Supreme Court with a discretion to order an examination. Section 31D(1) does not impose any constraint upon that discretion. Obviously, the discretion must be exercised in accordance with the objects of the CAR Act. The objects include the confiscation of property of a person where the Court is satisfied that the person has engaged in serious crime related activities. An examination of a person believed to have engaged in such activities will clearly assist that objective, but examination is not itself stated as an objective. It is but one method whereby information may be obtained. The examination of an accused person pending his or her trial cannot be said to be required by necessary implication because the CAR Act's purposes would otherwise be frustrated. There are other methods of investigation and proof. The objects of the CAR Act cannot be seen to depend upon when an examination is conducted. The CAR Act nowhere suggests as necessary, in every case, the examination of a person against whom a confiscation order is sought, or that an examination should be ordered regardless of the person's circumstances and whether the criminal justice system is engaged. The latter question is reserved to a judge's discretion under s 31D(1)(a).
Section 27(2) does not suggest any urgency in the making of a confiscation order. It does not limit the offences upon which the order may be based to a period assessed from the making of the order, but to a period (six years) before the making of the application for the order. In the interim, a situation of urgency might arise where property the subject of the application is being dissipated. This might necessitate a discrete examination as to the existence and state of the property. But there does not seem to be, in the ordinary course, any urgency attending proof of a person's engagement in serious crime related activity for the purposes of a confiscation order. The CAR Act provides no reason why a judge should not, consistently with Hammond, refuse an order or adjourn an examination where criminal proceedings are pending.
Because s 31D(1)(a) is in general terms, it cannot be read as authorising a contempt. Hammond holds that to compel answers about an offence with which a person is charged poses a real risk of interference with the administration of justice. X7 also holds that it would alter the fundamental principle. It follows that s 31D(1)(a) cannot be taken to authorise an examination in such circumstances. A judge would be compelled in such circumstances to refuse an order for an examination.
Neither the terms of s 31D(1)(a) nor any other provision of the CAR Act suggest that the prospect of a contempt being committed, as a result of the making of an order for examination of an accused person, was addressed. Rather, s 31D(1)(a) is to be understood as leaving that possibility to the consideration of the judge hearing the application.
Meagher JA in the Court of Appeal clearly considered that a judge hearing the application retained a discretion to refuse an order for examination. His Honour no doubt had the possibility of contempt in mind when he referred to the risk that the examination might present to the trial of an accused person. However, as observed earlier, his Honour identified solely the risk posed by the use of derivative evidence and considered that to be an insufficient basis for declining an order for examination. This is to underestimate the risks presented by the examination. The risks are more than the possible use of derivative evidence. They are sufficient for this Court to have consistently held that a continuance of an examination will usually constitute a contempt.
In the course of his reasons, Basten JA discussed what the legislature may be taken to have addressed in s 13A. His Honour observed that the possibility of criminal charges was addressed by the provision made in s 13A(2) for "use immunity" at trial, and that the possibility that answers given under compulsion might lead to further evidence of an incriminating kind was addressed in the rejection of a "derivative use immunity" in s 13A(3).
It may be accepted that sub-ss (2) and (3) of s 13A address the prospect of the use of evidence gained as a result of the examination in a criminal trial. Of course, such a trial would occur after that evidence was obtained. Those provisions do not suggest that the criminal proceedings spoken of are pending at the time of the examination. Nor do they suggest that the examinee is a person who stands charged with the offences upon which he or she is to be examined. In its terms, s 13A may be taken to refer to criminal proceedings which could occur in the future. It cannot therefore be said that it speaks unambiguously, or at all, of the circumstance of pending charges.
It was also observed in the reasons of the Court of Appeal that there was no attempt by the legislature to condition the removal of the privilege upon the existence or otherwise of outstanding criminal charges. But this is to treat the fact that the legislature said nothing about the existence of charges as being determinative. It proceeds upon an assumption that it is necessary, in the legislative scheme, for an accused person to be excepted from the operation of s 13A; whereas neither the terms of that section nor its context permit a construction which necessarily includes an accused person. The fact that the CAR Act did not address the position of an accused goes no way to providing the requisite certainty and clarity of intention to affect that person's trial. Given the fundamental principle and the risk the CAR Act poses to the criminal process, it was incumbent upon the legislature to make plain its intention. It has not done so.
Had the legislature turned its mind to the circumstance of a person already charged with an offence and whose trial is pending when an examination is to take place, it would have had to direct its attention to the problem of possible contempt and it does not appear to have done so. The provision made in s 13A(2) for the non-use of evidence is equivocal in this regard. It does not address the whole risk to a criminal trial to which Gibbs CJ adverted in Hammond. The protection provided by sub-s (2) and denied by sub-s (3) reflects a balance struck as a policy choice. But s 13A cannot be read as going so far as to address the question of contempt, let alone purporting to authorise it.
It is the privilege, which is personal, to which s 13A is directed and which is sought to be abrogated. The section is not directed to the fundamental principle, which, it will be recalled, prevents an accused being compelled to give evidence or to answer questions put to him or her. It cannot be taken to be directed to the fundamental principle and its wider operation because the matter of a person being on trial is not mentioned in the section, yet the fundamental principle requires that the person cannot be compelled to enter the witness box, and statutory provisions confirm this as an essential aspect of the criminal process.
Basten JA was of the view that the primary judge, in holding that the decision in Hammond governed this case, "failed to consider the extent to which the [CAR Act] permitted a degree of potential interference with a criminal trial and precluded judicial intervention to prevent such interference." His Honour should not be taken to have been suggesting that the provisions of the CAR Act prevented the Supreme Court from exercising its inherent powers to prevent a contempt. Neither the respondent nor any intervener suggested that the CAR Act should be read in this way. It would appear that his Honour was referring to s 63 of the CAR Act. Section 63 provides that the fact that criminal proceedings have been instituted or commenced is, without more, not a ground on which the Supreme Court may stay proceedings under the CAR Act.
Basten JA considered s 63 to be of some importance to the question of legislative intention, a view in which Meagher JA concurred. Basten JA said that "[i]f the fact of criminal proceedings is 'not a ground' to stay an examination under s 31D it should not be an available ground for resisting or delaying examination on any other procedural basis. Further, the purpose is not avoided by arguing that the real ground is the risk of prejudice to a criminal proceeding, rather than the fact that such a proceeding is on foot."
The appellants submit that reliance upon s 63 is misplaced. In their submission, s 63 is directed to a narrow proposition, namely that "the fact" of the institution of criminal proceedings does not provide a ground for a stay. In that regard, s 63 does no more than reflect the position at common law and merely precludes the Supreme Court from relying on the fact of the institution of criminal proceedings, without more, as a reason for staying existing proceedings under the CAR Act. Those submissions should be accepted. On an application for a stay of other proceedings generally, no assumption arises from the existence of criminal proceedings; rather, the risk of prejudice to those criminal proceedings is to be considered having regard to all the circumstances.
Section 63 cannot be taken as a statement of intention of some broad statutory purpose respecting criminal proceedings. It does not manifest a general intention that the various powers conferred by the CAR Act are to be exercised without regard to their impact on criminal proceedings. It cannot be said, by reference to s 63, that the legislature intended that an accused person be examined or that the legislature turned its mind to the risk of interference with a criminal trial if an examination was ordered in such circumstances.
Under the CAR Act, any examination ordered under s 31D(1)(a) is to be conducted before the Supreme Court or an officer of the Court (in this case a registrar). As earlier mentioned, that fact does not alter the requirement that the CAR Act be seen clearly to have addressed certain considerations, before it can be concluded that it intended to authorise the examination of an accused person. The considerations are whether there will be a risk to the administration of justice and a consequential alteration to the fundamental principle.
How are these considerations addressed by the provision that an examination be conducted before the Court - even taking account of its powers, including its inherent powers? The requirement that the examination be conducted before the Court is a general one, one which is intended to apply to the examinations of all persons, accused or not. As explained at the outset of these reasons, the fact that the Court is able to exercise its powers to ameliorate the effects of an examination does not answer the question of legislative intention, which is one of construction.
No assumption about whether these considerations were addressed can be imputed to the legislature. No party suggested that there was no risk to the administration of justice by virtue of the requirement that the examination be conducted before the Court, nor could such a suggestion sensibly be made. The examination is conducted before, not by, the Court. It is conducted by the Crime Commission. A risk is therefore possible. The Court will not be in a position to appreciate when an accused's defence will be prejudiced for the reason that it will not know what it is. That is why, as Hammond holds, an examination should not proceed.
It is necessary to keep well in mind the nature of the risk in question. The occasion for the risk is not whether a particular question might be asked, which the Court can identify as prejudicial and address. The occasion for the risk is an examination in the circumstance where a person is charged with an offence. The risk arises because an examination is likely to prejudice the conduct of the accused in the accused's defence. In these circumstances, as earlier explained, the Court would almost certainly be obliged to refuse an order for examination under s 31D(1)(a). The question of the extent to which the Court's powers might ameliorate that prejudice will therefore not arise. There will be no inquiry parallel to the substantive proceeding under the CAR Act, at least until the criminal trial is concluded.
Hamilton v Oades
In concluding that the CAR Act authorises conduct which is likely to present risks to an accused's criminal trial, Basten JA drew largely upon the decision in Hamilton v Oades rather than upon that in Hammond.
Hamilton v Oades was concerned with an examination occurring in the context of the liquidation of a company. Mr Oades was charged with offences arising out of his association with that company. Section 541(2) and (3) of the Companies (New South Wales) Code provided, in part, that if it appeared to the Corporate Affairs Commission of New South Wales that a person had taken part in the affairs of a company and had been or may have been guilty of fraud or other misconduct, the Commission could apply to the Supreme Court, which could order that person to be examined as to the affairs of the company. By sub‑s (5), the Court could give directions as to the matters to be inquired into and the procedure to be followed. Sub-section (12) provided, in effect, that a person was not excused from answering an incriminating question. The ratio of Hamilton v Oades is that sub-s (12) was effective to abrogate the privilege against self-incrimination and that the directions power in sub-s (5) could not be utilised to overcome the effect of sub-s (12). The Court divided on the latter issue: Mason CJ, Dawson and Toohey JJ were in the majority; Deane and Gaudron JJ dissented.
Basten JA considered the legislation in Hamilton v Oades to be similar in terms and effect to that in the present case. It is also not far removed from the legislation considered in Hammond. The difference between them is that the legislation in Hamilton v Oades had a special historical context and was to be understood by reference to it. Mason CJ said in Hamilton v Oades that there has been a long history of legislation governing examinations in bankruptcy which abrogates or qualifies the right of an examinee to refuse to answer. In Ex parte Willey; In re Wright, Jessel MR spoke of the "grave power" that was then provided to examine and which was "found nowhere except in bankruptcy and the winding-up of companies".
An earlier history, derived from the Chancery Court, informed legislation in those areas. With respect to the right not to be interrogated, the Chancery Court took a view different from the common law. In Rees v Kratzmann, Windeyer J referred to the traditional objection of the common law to compulsory interrogation, connected to the processes of the Star Chamber and the idea that English methods were more just than the inquisitorial processes of other jurisdictions. But, his Honour observed, "strong as has been the influence of this attitude upon the administration of the common law, of the criminal law especially, it must be admitted that in the Chancery Court it had less place: and in bankruptcy jurisdiction it has been largely displaced." In that jurisdiction, a debtor could not refuse to answer questions on the ground that to do so might incriminate him.
In Ex parte Cossens; In the Matter of Worrall Lord Eldon LC said that it could not be doubted that "one of the most sacred principles" of the law is that "no man can be called on to criminate himself". His Lordship went on: "I have always understood that proposition to admit of a qualification with respect to the jurisdiction in bankruptcy". This, his Lordship said, was "because a bankrupt cannot refuse to discover his estate and effects, and the particulars relating to them". That is so even if, in the course of giving information to his creditors about his property, "that information may tend to shew he has property which he has not got according to law".
The early bankruptcy legislation indicates that the purpose of the qualification to the privilege was the discovery and prevention of fraud. By way of example, a provision of the Bankrupt Law Consolidation Act 1849 (UK), which was held in R v Scott to affect a debtor's privilege, provided that a bankrupt could be examined by the court "touching all matters relating to his trade, dealings, or estate, or which may tend to disclose any secret grant, conveyance, or concealment of his lands, tenements, goods, money, or debts". It was further explained by Lord Hanworth MR in In re Paget; Ex parte Official Receiver that the object of the examination provided for in bankruptcy legislation was the protection of the public and to ensure the bankrupt was entitled to a discharge. The legislation at that time provided that the court could refuse a discharge on the receipt of the official receiver's report into the bankrupt's conduct and must in all cases refuse discharge where the bankrupt had committed any misdemeanour connected with his bankruptcy.
A similar approach was taken to examinations conducted in connection with the winding up of companies. It was observed in Bishopsgate Investment Management Ltd v Maxwell that public examination was introduced into the field of company winding up by an Act of 1890. The critical limitation, which was applied to the examination of a promoter, director or other officer of a company, was that it could occur only when the official receiver had named that person as a person who had committed fraud in the projects of the company since its formation. In order to give the court jurisdiction to make such an order, there had to be a finding of fraud against the person, who was then summoned before the court and compelled to answer, regardless of whether the answer incriminated him or not. It was further observed in Bishopsgate that a similar conclusion was reached by this Court in Mortimer v Brown regarding comparable provisions in the then Queensland companies legislation.
The legislation in question in each of Rees v Kratzmann, Hamilton v Oades and Mortimer v Brown, which was also referred to by the Court of Appeal, was directed to the possibility of fraud affecting the property of the company. Kitto J observed in Mortimer v Brown that the purpose of the provision in question was to allow the possibility of a fraud in connection with a company's affairs to be fully investigated. Of its nature, such an investigation will involve incriminating questions and therefore the intention of the legislature was clear. When Hamilton v Oades was decided, it had already been determined in Mortimer v Brown that a person suspected of misconduct in the nature of corporate fraud was obliged to answer all relevant questions put to him or her.
Hamilton v Oades is not a warrant for extending the view of the operation of such legislation in these areas of the law to legislation operating in different spheres where the fundamental principle operates and the system of criminal justice is maintained. Hammond and the earlier cases confirm this to be so. The only way that this trilogy of cases can be reconciled with Hammond and its predecessors is to recognise the trilogy as the result of an historical anomaly, as the majority in X7 held.
Gibbs CJ, in Hammond, was aware of the decisions in Rees v Kratzmann and Mortimer v Brown and noted that they had not been discussed in argument, likely because the parties assumed Mr Hammond was obliged to answer, an assumption that his Honour doubted. It seems highly unlikely that his Honour and Brennan J would have suggested that there was a real question about the clarity of intention expressed in the legislation considered in Hammond and its effect upon the privilege had their Honours considered that those decisions had foreclosed that inquiry.
It is of interest to observe that in Hamilton v Oades Mason CJ also acknowledged that the risk of interference with criminal justice arose not only from answers which might be given at the examination in the absence of the privilege. His Honour pointed out that the Supreme Court otherwise retained the power to ensure the proper administration of justice and could therefore restrain an examination which sought the disclosure of defences or pre-trial discovery and could disallow a question which would prejudice an examinee's fair trial.
Insofar as Mason CJ considered that the legislation there in question could be taken to have intended to apply to a person whether charged or not, such a conclusion was possible only because the areas of legislation, historically, have operated outside the criminal justice system and without regard to the fundamental principle. Hamilton v Oades can provide no answer to a case such as this. Its irrelevance is confirmed by X7. As the majority there explained, it is not to the point to seek to draw out whatever drafting similarities might be found in legislation concerned with companies examination cases and the relevant provisions of a piece of legislation which may affect the criminal justice system. The view expressed in X7 concerning Hamilton v Oades should be adhered to.
Conclusion and orders
It is not necessary to consider the appellants' submissions concerning the exercise of the discretion under s 31D(1). The construction of the relevant provisions of the CAR Act provides the answer to the appeal. An intention to abrogate an examinee's privilege against self-incrimination, without more, does not evidence an intention that the CAR Act is to apply to a person charged with a serious crime whose trial is pending or in progress.
The appeal should be allowed with costs and the orders of the Court of Appeal set aside. In lieu of those orders there should be orders dismissing the appeal to that Court with costs.