(b) The scope of s 25A - Grounds 1 - 9
76Fundamental to the Crown appeal was its submission that in circumstances where derivative immunity had been abolished, pre-charge distribution of examinations of potential accused to prosecutorial authorities could never prejudice a fair trial.
77I agree with the Crown's submission that cases such as Hammond supra do not directly assist the respondents in the present case. What was decided in that case was that once it was accepted that the plaintiff will be bound to answer questions designed to establish that he is guilty of an offence with which he is charged, there is a real risk that the administration of justice would be interfered with: Hammond supra at 198 per Gibbs CJ, with whom Mason J agreed. The principle as stated in that case, in my view, is dependent on court proceedings being in existence as there can be no interference with the administration of justice unless and until that occurs. However, it is relevant to the present case that the reason for the interference was the likelihood that any answers would prejudice the defence of the examinee at the trial. In Hammond supra at 198, Gibbs CJ stated the position in the following terms:
"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."
See also Deane J at 206.
78The reason such an examination in the case of a charged person constituted an interference with the administration of justice was restated by Gibbs CJ in Sorby v The Commonwealth [1983] HCA 10; (1983) 152 CLR 281 at 294:
"In the absence of binding authority the matter must be approached from the standpoint of principle. If a witness is compelled to answer questions which may show that he has committed a crime with which he may be charged, his answers may place him in real and appreciable danger of conviction, notwithstanding that the answers themselves may not be given in evidence. The traditional objection that exists to allowing the executive to compel a man to convict himself out of his own mouth applies even when the words of the witness may not be used as an admission. It is a cardinal principle of our system of justice that the Crown must prove the guilt of an accused person, and the protection which that principle affords to the liberty of the individual will be weakened if power exists to compel a suspected person to confess his guilt. Moreover the existence of such a power tends to lead to abuse and to 'the concomitant moral deterioration in methods of obtaining evidence and in the general administration of justice'."(Citation omitted)
79Notwithstanding, it is well established that the legislature is entitled to abrogate the privilege: Sorby supra at 294-295, 300; Pyneboard Pty Limited v Trade Practices Commission [1983] HCA 9; (1983) 152 CLR 328 at 341; Hamilton supra; Daniels supra at [11]. The position was summarised by Mason J in Hamilton supra at 494 in the following terms:
"It is plain that an examination under s.541 while charges are pending may expose the witness to the risks mentioned. To the extent only that under the section rights of an accused person are denied and protections removed, an examination may even amount to an interference with the administration of criminal justice. But it is well established that Parliament is able to 'interfere' with established common law protections, including the right to refuse to answer questions the answers to which may tend to incriminate the person asked: see Hammond v. The Commonwealth; Sorby. There has been a long history of legislation governing examinations in bankruptcy and under the Companies Acts which abrogate or qualify the right of the person examined to refuse to answer questions on the ground that the answers may incriminate him."(Citations omitted)
80Further, it is clear in my opinion that the legislature has abrogated the privilege against indirect or derivative self-incrimination in the present case. Although s 30 of the Act does not expressly do so, having regard to the repeal of the protection against such use contained in s 30(5) of the predecessor legislation, such immunity has been abrogated by necessary implication. Although it is correct that a clear expression of legislative intent is required to take away a common law right, such an expression of intention can arise by necessary implication: Sorby supra at 305.
81The conclusion that I have reached from a consideration of the words of the Act is consistent with the statement of legislative purpose referred to in the Explanatory Memorandum, which I have extracted in par [16] above. This interpretation is consistent with the interpretation placed on the section by Weinberg J in A v Boulton [2004] FCA 56; (2004) 204 ALR 598 at [91]-[125], affirmed on appeal in A v Boulton [2004] FCAFC 101; (2004) 136 FCR 420 at [65]-[72]. I would follow that decision unless convinced it was plainly wrong. I am not so convinced. To the contrary I believe it is correct.
82In Boulton supra, Weinberg J rejected the submission that the principle stated in Hammond supra at 198, should be extended to persons about to be charged. He pointed out there was no certainty that a person about to be charged would be charged, and further, that there could not be an interference with the administration of justice or contempt of court when proceedings were not on foot: Boulton supra at [129]-[136]. I agree, but that does not deal with the question of dissemination of an examination which was held or the scope of s 25A of the Act. Boulton supra was an application for a declaration that the applicant was entitled to refuse to answer questions at an examination on the grounds they might incriminate him notwithstanding the provisions of s 30. No issue concerning s 25A of the Act arose.
83As the primary judge pointed out, s 25A of the Act has been the subject of judicial consideration by the Full Court of the Federal Court and by this Court. Each of those cases concerned charged examinees in respect of whom non-publication orders had been made. In OK supra, the examinee sought to restrain any further examination. The minority judge, Spender J, would have made such an order, but the majority, Emmett and Jacobsen JJ, declined to do so expressing the view that s 25A provided adequate protection to the charged person.
84The majority in OK supra took the view that there was an obligation on the examiner to give a direction where the failure to do so might prejudice the fair trial of a person charged with an offence. In addition, the Chief Executive Officer of the ACC was obliged not to vary such a direction if the variation had that effect. Their Honours stated the position in the following terms:
"[75] Under s 25A(9), an examiner may direct that any evidence given before the examiner must not be published, or must not be published except in such manner, and to such persons, as the examiner specifies. The examiner must give such a direction if the failure to do so might prejudice the fair trial of a person who has been, or may be, charged with an offence. A person who makes a publication in contravention of a direction given under s 25A(9) is guilty of an offence. Under s 25A(10), the CEO may vary or revoke a direction under s 25A(9). However, the CEO must not vary or revoke a direction if to do so might prejudice the fair trial of a person who has been, or may be, charged with an offence." (Emphasis in original)
85Their Honours stated that the purpose of s 25A was to manage the risk of prejudice to a fair trial. In that context they made the following remarks:
"[107] A significant difference between the circumstances of Hammond's Case and the circumstances of the present case is the regime that is now provided for in s 25A of the Commission Act. Under the Commission Act generally, and s 25A in particular, the risk of prejudice to a fair trial is to be managed by confining the persons to whom answers given by a witness can be disclosed, not by confining the questions that might be put to the witness. The Commission Act provides its own statutory safeguards to avoid risk to the fair trial of such a charge. On its true construction, the Commission Act permits an examination to continue on a subject matter directly related to a pending charge so long as the protective prohibitions contemplated by s 25A(3) and (9) have been put in place. Such principle as might relevantly be drawn from Hammond's Case is displaced by the express provisions of the Commission Act.
...
[109] The objects of the Commission Act could be seriously impaired if its investigations had to stop for an indeterminate period because charges had been laid. The public interest requires the investigation of a federally relevant criminal activity to continue. The right to a fair trial will not be compromised merely by the asking of questions of an accused person in circumstances where appropriate confidentiality is ensured. The public interest in the administration of justice, in particular to the right to a fair trial, is preserved by the statutory safeguards referred to in [43] above. In this way the legislation achieves a balance between the public interest in the investigation of federally related criminal activity and the public interest in the right of an accused person to a fair trial. Compromise, if any, would occur by reason of the deployment or dissemination of information obtained in a way that poses a real risk to a fair trial. A non-publication direction made under s 25A of the Commission Act remains operative unless and until it is varied or revoked. Such a direction binds the Board, the Commission and the CEO when disseminating, under s 12 or s 59, any information gathered at an examination conducted subject to such a direction."
86The majority in OK did not differentiate between the position of a person charged or a person who may be charged. That is consistent with the words of the section. However, it was not necessary for the Court to consider what might prejudice a fair trial of a person who had not been charged but who might be charged in the future, or whether the abrogation of the privilege against indirect or derivative self-incrimination coupled with the limited protection offered by s 30(4) and (5) had any effect on the obligation to give a direction under s 25A(9) and (11).
87Importantly, their Honours held that the powers and obligations imposed by s 12(1) on the Chief Executive Officer and the Commission, and the power of dissemination granted to the Chief Executive Officer by s 59(7), must be read subject to any direction given under s 25A(9): OK supra at [108].
88CB supra concerned an application for a stay of proceedings by persons whose examination had continued after charges had been laid but whilst a direction under s 25A was in place.
89In CB supra, McClellan CJ at CL (with whom the other members of the Court agreed) expressed his agreement with the opinion of the majority in OK. In particular, he agreed that the powers and duties under s 12 and the power conferred on the Chief Executive Officer under s 59(7) were subject to any direction under s 25A(9): CB supra at [110]. His Honour went on to make the following remarks:
"[111] Provided the knowledge of the proceedings in the Commission are adequately protected an accused person's entitlement to a fair trial in accordance with the adversarial process will be ensured. The situation is no different whether at the time of the Commission hearing a charge has not been laid or the criminal process had commenced. The right to a fair trial will only be compromised if information relevant to a person's defence in any form, including any derivative information, is available to the prosecution.
...
[128] Although I accept that questions were asked of the appellant during his examination relating to matters relevant to the charges, accepting as I do that the majority decision in OK should be followed, provided the information obtained was effectively protected as the Commission acknowledged it should be, the mere fact that an examination has occurred could not justify a permanent stay. Even if, and the evidence does not establish this fact, it was the case that questions were asked which required the appellant to disclose his defence, this would not of itself have the consequence that the appellant would be denied 'a fair trial.' Only if it can be shown that either the relevant information has been, or there was a real risk that it would be communicated to the prosecution, could it be concluded that the exceptional step of granting a permanent stay should be taken."
90It is important to note that in par [111] of his judgment in CB supra, his Honour did not distinguish between the position pre-charge and post-charge.
91At the end of the day s 25A must be construed having regard to the words used taking into account its legislative history and context: Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at 31; Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 293 ALR 257 at [39]. The parties accepted that the word "might" qualified both limbs of the concluding phrase of s 25A(9) and s 25A(11); "the safety or reputation of a person" and "the fair trial of a person". The word "might" in those circumstances means a real risk as distinct from one that is remote or fanciful: cf Hammond supra at 196.
92The more difficult question is what constitutes prejudice to a fair trial for the purpose of the subsection. The concept is not capable of precise definition. In the passage of Sorby supra cited in par [78] above, Gibbs CJ suggested a fair trial would be compromised if a person was obliged to incriminate him or herself.
93In Environment Protection Authority v Caltex Refining Co Pty Limited [1993] HCA 74; (1993) 178 CLR 477 at 501, Mason CJ and Toohey J, citing with approval the principle expressed by Viscount Sankey in Woolmington v Director of Public Prosecutions [1935] AC 462 at 481-482, stated that it was a fundamental principle of the common law that the onus rests on the Crown of proving guilt beyond reasonable doubt, which is complemented by "the elementary principle that no accused person can be compelled by process of law to admit the offence with which he or she is charged". However, their Honours had reservations that the protection against production of incriminating books and documents was an essential element in the accusatorial system of justice: Caltex supra at 503. Their Honours also made it clear that the principle could be abrogated: Caltex supra at 503. McHugh J, at 545, cited three justifications for the privilege which were consistent with it being conducive to a fair trial. The first was the need to protect human dignity and freedom. In respect of that justification, he made the following remarks at 546:
"This justification is closely associated with concern at the possibility of abuse of the power by the Crown which, as I have pointed out, was the historical reason for the privilege. But the desire to protect the human dignity of the accused is a separate and important justification of the privilege. A rule which requires the prosecution to prove the guilt of an accused in the course of a judicial proceeding without reliance on his or her incriminating answers compulsorily obtained ensures that the prosecution must treat the accused as an innocent person whose rights as a human being must be respected. The 'show trials' of the totalitarian state are hardly possible in a system where the accused cannot be compelled to incriminate him or herself and the plea of not guilty at the commencement of the trial puts the Crown to proof of every issue and entitles the accused to a presumption of innocence until a guilty verdict displaces that presumption." (Citations omitted)
His Honour also stated that a further justification for the privilege was that it maintained the integrity of the accusatorial system by forcing the prosecution to rely upon independent evidence rather than the self-incrimination of the accused.
94Deane, Dawson and Gaudron JJ dissented on the question of whether a corporation was entitled to privilege against self-incrimination. At 527, their Honours cited with approval the passage from the judgment of Gibbs CJ in Sorby supra, which I have referred above in par [78]. Their Honours also made the following comments at 532:
"The privilege against self-incrimination confers an immunity which is deeply embedded in the law. In the end, it is based upon the deep-seated belief that those who allege the commission of a crime should prove it themselves and should not be able to compel the accused to provide proof against himself."(Citations omitted)
See also Deputy Commissioner of Taxation v De Vonk [1995] FCA 994; (1995) 61 FCR 564.
95In Lodhi v R [2007] NSWCCA 360; (2007) 179 A Crim R 470, [74], Spigelman CJ emphasised that the High Court had not recognised the right to a fair trial as a freestanding right. Nevertheless, in Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, at least four members of the Court seemed to take the view that although there had been no attempt to list exhaustively the attributes to a fair trial and that the concept was one which was impossible to formulate exhaustively in advance, nonetheless the right was ingrained in the legal system of this country: Dietrich supra at 301 (Mason CJ and McHugh J), 327-328 (Deane J), 353 (Toohey J).
96In Nutricia supra, Spigelman CJ, with whom Hidden and Latham JJ agreed, pointed out that the judgment of Deane, Dawson and Gaudron JJ in Caltex supra on this issue was not affected by their conclusion that self-incrimination immunity was available to a corporation. His Honour, after referring to Caltex supra, made the following remarks:
"[155] The accusatory system is, in my opinion, a fundamental element of our traditional method of determining criminal guilt. A public authority which formally alleges criminal conduct by a person must prove it. As recognised in the reasons of Mason CJ and Toohey J set out at 474 [67]-[68] supra and the observations of Deane, Dawson and Gaudron JJ set out at 490 [153] supra, the accusatory system is not co-extensive with the privilege against self-incrimination. It is derived, as many other aspects of our criminal procedure are derived, from the recognition of the imbalance of power between the State and its citizens. That imbalance extends to corporations."
97His Honour, however, concluded that indirect or derivative use of material compulsorily obtained was not necessarily sufficient to constitute "a relevant alteration or abridgment of the accusatory system". He stated the position was reasonably clear where derivative use impinges on a rule of substantive law such as privilege against self-incrimination, but the accusatory system was not such a rule: Nutricia supra at [164]-[165]. At [172], he considered the issue of derivative use raised questions of fact and degree. He also expressed the view at [124] and [134]-[135] that the commencement of proceedings usually makes a critical difference to the weight to be given to the public interest in the enforcement of the regulatory scheme. However, at [102], his Honour emphasised that the principle of a fair trial was not engaged in that case.
98Having regard to these authorities, it would seem to me that if the privilege against indirect or derivative self-incrimination had not been abrogated, s 25A(9) and s 25A(11) would require a direction to be made prohibiting the dissemination of self-incriminating material to prosecuting authorities both in the case of a person charged and a person who might be charged. This is because the use of such material by the Crown might prejudice a fair trial in the sense discussed by Gibbs CJ in Hammond supra and Sorby supra, and by the members of the High Court in Caltex supra in the passages to which I have referred above. Prior to the 2001 amendments, the Act provided two safeguards to a person being examined; first, that the undertaking provided for in s 30(5) be given and, second, the requirement for a direction under s 25A(9).
99The question remains whether the amendment to s 30, which had the effect of abrogating the privilege against indirect incrimination, leads to the conclusion that a fair trial for the purpose of s 25A of the Act could not be compromised by the disclosure of direct or indirect incriminating material to prosecuting authorities. In these circumstances the question is whether the only protection to which an accused or potential accused is entitled is that, at least in the case of answers given and in respect of some documents, the material would not be admissible in evidence. The Crown argued this was the effect of the amendment, at least when the material was disseminated prior to a charge being brought.
100I do not agree. Where a statute is amended both the act which is amended and the amending act must be read together as a combined statement of the will of the legislature as a consequence of which the effect of the amending act may be to alter the meaning which the remaining provisions of the amended act bore before the making of the amendments: Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd [1995] HCA 44; (1995) 184 CLR 453 at 463; Pearce and Geddes, Statutory Interpretation in Australia, 7th ed (2011) LexisNexis at [7.23]. However, it does not seem to me that the amendment to s 30 compels a conclusion that s 25A(9) has no application in the case of dissemination of self-incriminating material to prosecutorial authorities.
101As I indicated, the legislation as originally enacted contained two safeguards, the first in the original s 30 and the second in s 25A. As was said in OK supra at [109], the object of s 25A was to preserve a statutory safeguard to the right to a fair trial. If it was intended that the amending legislation was to take away that right, such an intention in my opinion, would need to have been clearly expressed: Potter supra at 304.
102That does not mean that s 25A would prohibit all derivative use of the material. So, for example, I do not believe a fair trial generally will be prejudiced by the use of information obtained during the course of an examination to obtain admissible evidence. Thus, answers which would tend to indicate the availability of admissible evidence could properly be used for this purpose. For example, in cases such as the present this may include the location of bank accounts. Further, it does not seem to me that the use by the prosecution of documents produced during the course of an examination which supported the Crown case, usually would compromise a fair trial. However, the question of whether derivative use of such material could have that effect will always depend on the material in question and the circumstances of its use.
103This in my opinion is consistent with what was said by Mason CJ and Toohey J in Caltex supra at 503, and by Spigelman CJ in Nutricia supra at [164]-[174] (see pars [93] and [96] above). It is also consistent with what was said by McClellan CJ at CL in CB supra at [99]. It also means that s 25A would not preclude the ACC from carrying out the investigatory functions imposed on it by s 7A and s 12 of the Act.
104The position is different in my opinion if the provision of the material in question discloses defences or explanations of transactions by the accused which he or she may raise at a trial, and possibly evidence or information which would tend to show that documents or transactions apparently regular on their face in fact tend to support the proposed charges. This would be contrary to the principles stated by Gibbs CJ in Sorby supra, and by Deane, Dawson and Gaudron JJ in Caltex supra, that the onus is on the Crown to prove its case and that the prosecution must prove it without reliance on incriminating answers. To provide to prosecutorial authorities material compulsorily obtained relating to such matters could compromise a fair trial in accordance with these principles.
105As McClellan CJ at CL pointed out in CB supra at [111], the principles are the same whether the material is provided before or after charge. The risk to a fair trial as envisaged by s 25A(9) and (11) is the same irrespective of when charges are brought. In the case of pre-charge dissemination the risk will only materialise when charges are in fact brought. That does not mean that courts may not take a different approach in assessing what, if any, relief should be given if the dissemination is pre or post-charge. It is simply to say that the statute itself looks in each case to possible prejudice to a fair trial, and the requirement of a direction does not differentiate between pre and post-charge dissemination.
106Two matters must be emphasised. First, it is impossible to state generally the nature and type of dissemination which might prejudice a fair trial. It will depend in all cases on the nature of the material to be disseminated, the function of the person or body to whom the material is to be disseminated and in some cases the timing of the dissemination. Secondly and importantly, s 25A(9) and s 25A(11) of the Act are directed to the question of whether the material might prejudice a fair trial. Any relief given as a result of dissemination contrary to a direction or in circumstances where a direction should have been given, would depend upon whether in fact the dissemination has compromised the accused's rights to a fair trial and what steps are necessary to alleviate the position. I do not understand McClellan CJ at CL to be saying anything different in pars [111] and [128] of his judgment in CB supra. In particular, I do not understand him to say that in all cases where information relating to a defence is furnished to prosecutorial authorities, a stay should be granted. If that is what his Honour was saying, I would respectfully disagree.
107In each of OK supra and CB supra, the Court held the power in s 59(7) of the Act was subject to a direction given pursuant to s 25A(9). I respectfully agree for the reasons given in those cases.
108Applying these principles, the primary judge's findings concerning the nature of the material supplied to the CDPP justified his conclusion that dissemination to the CDPP might prejudice a fair trial and that it should not have taken place having regard to the requirements of s 25A(9). This relates, in particular, to the primary judge's conclusions in pars [60] and [61] in relation to Mr McCarthy and his conclusions in pars [79] and [81] in relation to Mr Seller.
109In these circumstances it is unnecessary to deal with the argument that the CDPP is not a law enforcement office for the purpose of s 59(7) of the Act.